1
[LOGO] The Xxxxx Company
LEASE AGREEMENT
TABLE OF CONTENTS
Section Title Page
------- ----- ----
Lease Summary
1 Premises 1
2 Term 1
3 Rent 1 & 2
4 Security Deposit 2
5 Property Taxes and Insurance 2 & 3
6 Personal Property Taxes 3
7 Insurance and Indemnity 3 & 4
8 Use, Signs, Liens 4 & 5
9 Utilities and Janitor Service 5
10 Maintenance of Premises 5 & 6
11 Common Areas 6
12 Alterations 6 & 7
13 Assignment and Subletting 7
14 Access By Landlord 7
15 Damage or Destruction 7
16 Default or Re-Entry 8
17 Late Charges 8
18 Costs and Attorney's Fees 8
19 Non-Waiver of Breach 8
20 Removal of Property 8 & 9
21 Heirs and Successors 9
22 Hold-Over 9
23 Subordination, Quiet Enjoyment 9
24 Personal Property and Trade Fixtures 9
25 Condemnation 9 & 10
26 Notices 10
27 Corporate Authority 10
28 Miscellaneous 10
29 Hazardous and Toxic Waste Materials 10 & 11
30 Special Articles 11
Exhibit
A Legal Description
B Site Plan
C Description of Landlord's and Tenant's
Work of Improvement
C-1 Demising Plan of Premises
D Corporate Resolution of Tenant
2
LEASE SUMMARY
LEASE DATE: April 29,1996
LANDLORD: The Xxxxx Company
ADDRESS OF LANDLORD: 0000 000xx Xxx XX
Xxxxxxxx XX 00000
TELEPHONE: 000-0000
TENANT'S TRADE NAME: Optiva Corporation
ADDRESS OF TENANT (Address of Premises): 00000 XX 00xx Xx. Xxxxx X-0
Xxxxxxxx XX 00000
TELEPHONE AT PREMISES: 957-0970
BUSINESS HOME OFFICE ADDRESS:
BUSINESS HOME OFFICE TELEPHONE:
OWNER RESIDENCE ADDRESS:
OWNER RESIDENCE TELEPHONE:
PREFERRED XXXXXXX ADDRESS FOR NOTICES: xx PREMISES
BUSINESS HOME OFFICE
OWNER RESIDENCE
LEASED PREMISES: BUILDING A
SPACE(S) 1
SQUARE FEET OF PREMISES APPROXIMATELY 12,540
LEASE TERM: 24 MONTHS
LEASE COMMENCEMENT DATE: August 1, 1996
RENT COMMENCEMENT DATE: August 1,1996
LEASE TERMINATION DATE: July 31, 1998
MINIMUM MONTHLY RENT: Nine Thousand Four Hundred Five and
NO/100 Dollars ($9,405.00)
PER MONTH AS INCREASED BY THE TERMS OF THE LEASE.
SECURITY DEPOSIT: Seven Thousand Five Hundred and NO/100
Dollars ($7,500.00) from prior lease
PERMITTED USES: Office, assembly, light manufacturing,
distribution and warehouse storage
GUARANTOR:
ADDRESS OF GUARANTOR: 00000 XX 00xx Xx. Xxxxx X-0
(Business Address) Bellevue WA 98005
TELEPHONE NO: 000-0000
Landlord's Initials /s/
Tenant's Initials /s/
3
LEASE AGREEMENT
THIS LEASE, dated for reference purposes only, April 29, 1996, is made by
and between The Xxxxx Company hereinafter ("Landlord") and Optiva Corporation
(hereinafter "Tenant"). For and in consideration of the rental and of the
covenants and agreements hereinafter set forth to be kept and performed by the
Tenant, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Premises herein described for the term, at the rental and subject to and
upon all of the terms, covenants and agreements hereinafter set forth.
1.1 PREMISES
1.1 PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord that certain space (herein called "Premises") containing
approximately 12,540 square feet of floor area, the approximate location of
which is shown crosshatched on Exhibit B attached hereto. The Premises are
located in Xxxxxx Park, the legal description of which is set forth on Exhibit A
attached hereto, which is in the City of Bellevue, County of King, State of
Washington. The address of the Premises is as follows: 00000 XX 00xx Xx. Xxxxx
X-0, Xxxxxxxx XX 00000. This Lease is subject to the terms, covenants and
conditions herein set forth and the Tenant covenants as a material part of the
consideration for this Lease to keep and perform each and all of said terms,
covenants and conditions by it to be kept and performed.
1.2 WORK OF IMPROVEMENT. The obligations of Landlord and Tenant to
perform the work and supply material and labor to prepare the Premises for
occupancy are set forth in detail in Exhibits C and C-1. Landlord and Tenant
shall expend all funds and do all acts required in Exhibit C and C-1 and shall
have the work performed promptly and diligently in a first-class workmanlike
manner. By taking possession of the premises, Xxxxxx acknowledges that it has
examined the Premises and accepts the Premises in their condition at the time of
taking possession thereof.
2. TERM
2.1 TERM. The Term of this Lease shall be for 24 months commencing
August 1, 1996 and ending on July 31, 1998 unless sooner terminated pursuant to
this Lease. The rent commencement date shall be August 1, 1996 ("Rent
Commencement Date").
2.2 COMMENCEMENT. Xxxxxx agrees that in the event of the inability of
Landlord for any reason to deliver possession of the Premises to Tenant on the
commencement date set forth in Section 2.1, Landlord shall not be liable for any
damage thereby nor shall such inability affect the validity of this Lease or the
obligations of Tenant hereunder, but in such case Tenant shall not be obligated
to pay rent or other monetary sums until possession of the Premises is tendered
to Tenant; provided that if the delay in delivery of possession exceeds thirty
(30) days, then the expiration date of the term of the Lease shall be extended
by the period of time computed from the scheduled commencement date to the date
possession is tendered. In the event Landlord shall not have delivered
possession of the Premises within four (4) months from the scheduled
commencement date, then Tenant at its option to be exercised within thirty (30)
days after the end of said four (4) month period may terminate this Lease and
upon Landlord's return of any moneys previously deposited by Tenant the parties
shall have no further rights or liabilities toward each other. If Tenant
occupies the Premises prior to said commencement date, such occupancy shall be
subject to all provisions hereof, such occupancy shall not advance the
termination date and Tenant shall pay rent for such period at the initial
monthly rates as set forth below.
2.3 DELIVERY OF POSSESSION. Tenant shall be deemed to have taken
possession of the Premises when any of the following occur: (a) Landlord
delivers possession of the Premises to Tenant and a Certificate of Occupancy is
granted by the proper governmental agency, (b) upon a letter from Landlord that
the Premises are ready for occupancy, or (c) upon occupancy by the Tenant.
3. RENT
3.1 MINIMUM MONTHLY RENT. Tenant shall pay to Landlord as Minimum
Monthly Rent for THE Premises the sum of Nine Thousand Four Hundred Five and
NO/100 Dollars ($9,405.00) per month,
Page 1 of 14
Landlord's Initials /s/
Tenant's Initials /s/
4
which sum shall be paid in advance on the first day of each calendar month
beginning with the Rent Commencement Date and thereafter throughout the term of
the Lease. All rent to be paid by Tenant to Landlord shall be paid in lawful
money of the United States of America and shall be without deduction or offset,
prior notice or demand, and at such place or places as may be designated from
time to time by Landlord. If the Rent Commencement date is not the first day of
a month, or if the Lease termination date is not the last day of a month, a pro
rated monthly installment shall be paid at the then current rate for the
fractional month during which the Lease commences and/or terminates.
Concurrently with Xxxxxx's execution of this Lease, Tenant shall pay to Landlord
the sum Eleven Thousand Six Hundred Eighty-five and NO/100 Dollars ($11.685.00)
as Minimum Monthly Rent and Adjustments for August 1996.
The Minimum Monthly Rent shall be increased or decreased by the
percentage of change, if any, in the Consumer Price Index - All Urban Consumers,
All ltems (1982 - 84 = 100) equals Base ("CPI"), as published by the United
States Department of Labor's Bureau of Labor Statistics. The base period, for
purposes of such adjustment, shall be the CPI for the fourth calendar month
immediately preceding the first Lease Year (the "Base CPI"). The Minimum Monthly
Rent shall be adjusted for each Lease Year after the first Lease Year on the
basis of the percentage change in the CPI for the fourth calendar month
immediately preceding the Lease Year subject to adjustment compared to the Base
CPI. In no event, however, shall the rent payable in any Lease Year be reduced
below the Minimum Monthly Rent. Should the CPI be discontinued, the parties
shall select another similar index which reflects consumer prices and if the
parties cannot agree on another index it shall be selected by the Superior Court
of the County in which the premises are located.
(By way of illustration only, if the Base CPI is 190 and the CPI figure
for the fourth month before the second Lease Year is 195, then the Minimum
Monthly Rent for the second lease year shall be increased by 2.63%.)
3.2 ADJUSTMENTS. In addition to the Minimum Monthly Rent provided in
Section 3.1 above, Tenant shall pay to Landlord in monthly installments the
Tenant's portion of those items, herein called "Adjustments", delineated in
Sections 5, 9, 10 and 11. Upon commencement of the Term Landlord shall submit to
Tenant a statement of the anticipated monthly Adjustments for the period between
such commencement and the following January and Tenant shall pay same and all
subsequent monthly payments concurrently with the payment of Minimum Monthly
Rent. Tenant shall continue to make said monthly payments until notified by
Landlord of a change thereof. By March 1 of each year Landlord shall endeavor to
give Tenant a statement showing the total Adjustments for the Xxxxxx Park for
the prior calendar year and Xxxxxx's allocable share thereof, prorated from the
commencement of rental. Tenant's pro rata share, where applicable, shall be
determined in accordance with the total floor area of the Premises as it relates
to the total gross leasable floor area of the building or buildings of which the
Premises are a part. In the event the total of the monthly payments which Xxxxxx
has made for the prior calendar year are less than the Tenant's actual share of
such Adjustments then Tenant shall pay the difference in a lump sum within ten
days after receipt of such statement from Landlord and shall concurrently pay
the difference on monthly payments made in the then calendar year and the amount
of monthly payments which are then calculated as monthly Adjustments based on
the prior year's experience. Any overpayment by Xxxxxx shall be credited towards
the monthly Adjustments next coming due. The actual Adjustments for the prior
year shall be used for purposes of calculating the anticipated monthly
Adjustments for the then current year, with actual determination of such
Adjustments after each calendar year as above provided. Even though the term has
expired and Xxxxxx has vacated the Premises, when the final determination is
made of Xxxxxx's share of said Adjustments for the year in which this Lease
terminated, Tenant shall immediately pay any increase due over the estimated
Adjustments previously paid and, conversely, any overpayment made shall be
immediately rebated by Landlord to Tenant.
Page 2 of 14
Landlord's Initials /s/
Tenant's Initials /s/
5
4. SECURITY DEPOSIT
Concurrently with Xxxxxx's execution of this Lease, Tenant shall
deposit with Landlord the sum of Seven Thousand Five Hundred and NO/100 Dollars
($7,500.00) transferred from prior lease . Said sum shall be held by Landlord as
a Security Deposit for the faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Xxxxxx
during the term hereof. If Tenant defaults with respect to any provisions of
this Lease, including but not limited to the provisions relating to the payment
of rent and any of the monetary sums due herewith, 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 other 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 so used or applied, Tenant shall, within ten (10)
days after written demand therefor, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount; Tenant's
failure to do so shall be material 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 shall fully
and faithfully perform every provision of this Lease to be performed by it, the
Security Deposit or any balance thereof shall be returned to Tenant (or, at
Landlord's option, to the last assignee of Tenant's interest hereunder) at the
expiration of the Lease term and after Xxxxxx has vacated the Premises. In the
event of termination of Xxxxxxxx's interest in this Lease, Xxxxxxxx shall
transfer said Deposit to Xxxxxxxx's successor in interest, whereupon Tenant
agrees to release Landlord from all liability for the return of such Deposit or
the accounting therefore.
5. ADJUSTMENTS FOR REAL PROPERTY TAXES AND INSURANCE
In addition to the Minimum Monthly Rent provided in Section 3.1 above,
and commencing as of the commencement of the term of the Lease, Tenant shall pay
to Landlord in monthly installments, the Tenant's portion of the following items
herein called "Adjustments":
All insurance premiums paid on policies, maintained by Landlord with
respect to the Premises, including land, building and improvements including
without limitation, all premiums for fire, extended coverage, liability and with
respect to the Premises and all real estate taxes imposed on the Premises or
arising in respect to the occupancy, use or possession of the Premises. Real
property taxes shall include, without limitation, all assessments whether
general, special, ordinary, extraordinary, unforeseen or foreseen, of any kind
or nature levied, imposed or to become a lien upon or against the Premises and
any building, structure, fixture, improvement, personal property or inventory
now or hereafter located thereon, assessment or improvement bonds for water,
sewer, road and other public purposes, license, permit and inspection fees and
taxes, commercial rental tax and any other public charge, levy, or assessment
against any interest in the Premises or the real property of which the Premises
are a part, or against Landlord's right to rent or other income therefrom (other
than income taxes). All of the foregoing expenses shall be apportioned in
accordance with the Tenant's "pro rata share" which shall be determined in
accordance with the total floor area of the Premises as it relates to the total
gross leasable floor area of the building or buildings which the Premises are a
part; provided, however, that if any tenants in said building or buildings pay
taxes directly to any taxing authority or carry their own insurance, as may be
provided in their leases, their square footage shall not be deemed a part of the
floor area for purposes of prorating such expenses.
6. PERSONAL PROPERTY TAXES
Tenant shall pay, before delinquency, all taxes, assessments, license
fees and public charges levied, assessed or imposed upon or measured by the
value of its business operation, including but not limited to the furniture,
fixtures, leasehold improvements, equipment and other property of Tenant at any
time situated on or installed in the Premises by Tenant. If at any time during
the term of this Lease any of the foregoing are assessed as part of the real
property of which the Premises are a part, Tenant shall pay
Page 3 of 14
Landlord's Initials /s/
Tenant's Initials /s/
6
to Landlord upon demand the amount of such additional taxes as may be levied
against said real property by reason thereof. For the purpose of determining
said amount, figures supplied by the County Assessor as to the amount so
assessed shall be conclusive.
7. INSURANCE AND INDEMNITY
7.1 INDEMNIFICATION. It is understood and agreed that Landlord shall
not be liable for injury to any person, or for the loss of or damage to any
property (including property of Tenant) occurring in or about the Premises from
any cause whatsoever except for Landlord's negligence, reckless or willful
misconduct. Tenant hereby indemnifies and holds Landlord harmless from and
against and agrees to defend Landlord against any and all claims, charges,
liabilities, obligations, penalties, damages, costs and expenses (including
attorney's fees) arising, claimed, charged or incurred against or by Landlord
from any matter or thing arising from Tenant's use of the Premises, the conduct
of its business or from any activity, work or other things done, permitted or
suffered by the Tenant in or about the Premises, and Tenant shall further
indemnify and hold harmless Landlord from and against any and all claims arising
from any breach or default in the performance of any obligation on Tenant's part
to be performed under the terms of this Lease, or arising from any act or
negligence of the Tenant, or any officer, agent, employee, guest, or invitee of
Tenant, and from all costs, attorney's fees and liabilities incurred in or about
the defense of any such claim or any action or proceeding brought thereon and in
case any action or proceeding be brought against Landlord by reason of such
claim. Tenant, upon notice from Landlord, shall defend the same at Tenant's
expense by counsel reasonably satisfactory to Landlord. Tenant as a material
part of the consideration to Landlord hereby assumes all risk of damage to
property or injury to persons in, upon or about the Premises, from any cause
other than Landlord's negligence, or willful misconduct, and Tenant hereby
waives all claims in respect thereof against Landlord. The indemnification
provided for in this Section with respect to any acts or omissions during the
term of this Lease shall survive any termination or expiration of this Lease.
Landlord and its agents shall not be liable for any loss or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Premises or from
pipes, appliances or plumbing works therein or from the roof, street or
subsurface or from any other place resulting from dampness or any other cause
whatsoever, unless caused by or due to the negligence of Landlord, its agents,
servants or employees. Landlord and its agents shall not be liable for
interference with the light, air or for any latent defect on the Premises.
Tenant shall give prompt notice to Landlord in case of casualty or accidents on
the Premises.
7.2 INSURANCE. During the entire Lease Term the Tenant shall, at its
own expense, maintain adequate liability insurance with a reputable insurance
company or companies with minimum amounts of $1,000,000.00 Combined Single
Limits (including bodily injury and property damage) to indemnify both Landlord
and Tenant against any such claims, demands, losses, damages, liabilities and
expenses. Landlord shall be named as one of the insureds and shall be furnished
with a copy of such policy or policies of insurance, which shall bear an
endorsement that the same shall not be canceled except upon not less than twenty
(20) days prior written notice to Landlord. Tenant shall also at its own expense
maintain, during the Lease Term, insurance covering its furniture, fixtures,
equipment and inventory in an amount equal to the full insurable value thereof,
against fire and risks covered by standard extended coverage endorsement and
insurance covering all plate glass and other glass on the Premises. Tenant shall
provide Landlord with copies of the policies of insurance or certificates
thereof. If Tenant fails to maintain such insurance, Landlord may maintain the
same on behalf of Xxxxxx. Any premiums paid by Landlord shall be deemed
additional rent and shall be due on the payment date of the next installment of
Minimum Monthly Rental hereunder.
7.3 INCREASE IN INSURANCE PREMIUM. Tenant shall not keep, use, sell or
offer for sale in or upon the Premises any article which may be prohibited by
the standard form of fire insurance policy. Tenant shall pay any increase in
premiums for casualty and fire (including extended coverage) insurance that may
be charged during the Term of this Lease on the amount of such insurance which
may be carried by
Page 4 of 14
Landlord's Initials /s/
Tenant's Initials /s/
7
Landlord on the Premises or the building of which they are a part, resulting
from Xxxxxx's occupancy or from the type of merchandise which Tenant stores or
sells on the Premises, whether or not Landlord has consented thereto. In such
event, Tenant shall also pay any additional premium on the insurance policy that
Landlord may carry for its protection against rent loss through fire or
casualty. In determining whether increased premiums are the result of Tenant's
use of the Premises, a schedule, issued by the organization setting the
insurance rate on the Premises, showing the various components of such rate,
shall be conclusive evidence of the several items and charges which make up the
casualty and fire insurance rate on the Premises. Landlord shall deliver bills
for such additional premiums to Tenant at such times as Landlord may elect, and
Tenant shall immediately reimburse Landlord therefor.
7.4 WAIVER OF SUBROGATION. Landlord and Tenant hereby mutually release
each other from liability and waive all right of recovery against each other for
any loss in or about the Premises, from perils insured against under their
respective fire insurance contracts, including any extended coverage
endorsements thereof, whether due to negligence or any other cause; provided
that this Section shall be inapplicable if it would have the effect, but only to
the extent it would have the effect, of invalidating any insurance coverage of
Landlord or Tenant.
7.5 COMPANIES. Insurance required hereunder shall be issued by
companies rated AAA or better in "Bests" Insurance Guide.
7.6 CERTIFICATE OF INSURANCE. A certificate issued by the insurance
carrier for each policy of insurance required to be maintained by Tenant under
the provisions of this Lease shall be delivered to Landlord on or before the
commencement date of the Lease Term hereof and thereafter, as respects policy
renewals, within thirty (30) days prior to the expiration of the term of each
such policy. Each of said certificates of insurance and each such policy of
insurance required to be maintained by Tenant hereunder shall expressly evidence
insurance coverage as required by this Lease. All such policies shall be written
as primary policies not contributing with and not in excess of coverage which
Landlord may carry.
8. USE
8.1 USE. The Premises shall be used and occupied by Tenant for only the
following purposes and for no other purposes whatsoever without obtaining the
prior written consent of Landlord: office, assembly, light manufacturing,
distribution and warehouse storage.
8.2 SUITABILITY. If the Premises are completed as of the date of
execution hereof, then Tenant, by execution of this Lease, shall be deemed to
have accepted the Premises in the condition existing as of the date of execution
and in any event this Lease shall be subject to all applicable zoning ordinances
and to any municipal, county and state laws and regulations governing and
regulating the use of the Premises. Tenant acknowledges that neither Landlord
nor Xxxxxxxx's agent has made any representation or warranty as to the
suitability of the Premises for the conduct of Xxxxxx's business.
8.3 USES PROHIBITED. Tenant shall not do or permit anything to be done
in or about the Premises which will increase the existing rate of insurance upon
the Premises (unless Tenant shall pay any increased premium as a result of such
use or acts) or cause the cancellation of any insurance policy covering said
Premises or any building of which the Premises may be a part, nor shall Tenant
sell or permit to be kept, used or sold in or about said Premises any articles
which may be prohibited by a standard form policy of fire insurance.
Tenant shall not do or permit anything to be done in or about the
Premises which will obstruct or interfere with the rights of other tenants or
occupants of any building of which the Premises may be a part or injure or annoy
them or use or allow the Premises to be used for any unlawful, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises. Tenant
shall not commit or suffer to be committed any waste in or upon or about the
Premises.
Tenant shall not dispose of nor otherwise allow the release of any
hazardous waste or substance in, on or under the Premises, any improvements
placed thereon or any adjacent property.
Page 5 of 14
Landlord's Initials /s/
Tenant's Initials /s/
8
Tenant represents and warrants to Landlord that Xxxxxx's intended use of the
Premises does not involve the use, production, disposal or bringing on the
Premises of any hazardous waste or substance of types other than, or in
quantities in excess of, those normally incident to the use of the Premises for
general office use. For purposes of this Lease the term "hazardous waste or
substance" shall mean any substance, waste or material defined or designated as
hazardous, toxic or dangerous (or any similar term) by any federal, state or
local statute regulation, rule or ordinance now or hereafter in effect.
Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law, statute, zoning
restriction, ordinance or governmental rule or regulation or requirements or
duly constituted public authorities now in force or which may hereafter be
enacted or promulgated. Tenant shall at its sole cost and expense promptly
comply with all laws, statutes, ordinances and governmental rules, regulations
or requirements now in force or which may hereafter be in force and with the
requirements of any board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use or occupancy
of the Premises. The judgment of any court of competent jurisdiction, whether
Landlord be a party thereto or not, that Tenant has violated any law, statute,
ordinance or governmental rule, regulation or requirement, shall be conclusive
of that fact as between Landlord and Tenant.
8.4 SIGNS.
(a) GENERAL. Tenant shall not place or suffer to be placed on
the exterior walls of the Premises or upon the roof or any exterior door or wall
or on the exterior or interior of any window thereof any sign, awning, canopy,
marquee, advertising matter, decoration, letter or other thing of any kind
(exclusive of signs, if any, which may be provided for in the original
construction or improvement plans and specifications approved by the Landlord or
Tenant herein, and which conform to the Landlord's sign criteria as specified in
Exhibit F attached hereto if applicable) without the prior written consent of
Landlord. Landlord hereby reserves the exclusive right to the use for any
purpose whatsoever of the roof and exterior of the walls of the Premises or the
Building of which the Premises are a part.
(b) TENANT'S INTERIOR SIGNS. Except as otherwise herein
provided, Tenant shall have the right, at its sole cost and expense, to erect
and maintain within the Interior of the Premises all signs and advertising
matter customary or appropriate in the conduct of Tenant's business; provided,
however, that Tenant shall upon demand of the Landlord immediately remove any
sign, advertisement, decoration, lettering or notice which Tenant has placed or
permitted to be placed in, upon or about the Premises and which Landlord
reasonably deems objectionable or offensive, and if Xxxxxx fails or refuses do
to so, the Landlord may enter upon the Premises and remove the same at Tenant's
cost and expense.
8.5 LIENS. Tenant shall keep the Premises and any building of which the
Premises are a part free from any liens arising out of work performed, materials
furnished or obligations incurred by Tenant and shall indemnify, hold harmless
and defend Landlord from any liens and encumbrances arising out of any work
performed or material furnished by or at the direction of Tenant. In the event
that Tenant shall not, within twenty (20) days following the imposition of any
such lien, cause such lien to be released of record by payment or posting of a
proper bond not to be less than 120% of the lien claim, Landlord shall have, in
addition to all other remedies provided herein and by law, the right, but not
the obligation, to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien. All such sums
paid by Xxxxxxxx and all expenses incurred by it in connection therewith
including attorney's fees and costs shall be payable to Landlord by Tenant on
demand. Landlord shall have the right at all times to post and keep posted on
the Premises any notices permitted or required by law, or which Landlord shall
deem proper, for the protection of Landlord and the Premises, and any other
party having an interest therein, from mechanics' and materialmen liens, and
Tenant shall give to Landlord at least ten (10) business days prior written
notice of the expected date of commencement of any work relating to alterations
or additions to the Premises.
Page 6 of 14
Landlord's Initials /s/
Tenant's Initials /s/
9
9. UTILITIES AND JANITOR SERVICE
Tenant shall be liable for and shall pay throughout the term of this
Lease all charges for utilities, including but not limited to electricity, heat,
oil, gas and water consumed upon the leased Premises and telephone, sewage,
drainage and garbage disposal services, if any, including any charges imposed
for such services by the Municipality of Metropolitan Seattle; and shall
provide its own janitor services and replacement of light bulbs and tubes and
all washroom and toilet supplies. If any such services are not separately
metered to Tenant, Tenant shall pay its pro rata share as specified in Section
3.2 above.
10. MAINTENANCE OF PREMISES
10.1 MAINTENANCE AND REPAIR BY TENANT. Tenant shall at all times
throughout the Lease Term at its sole cost and expense, keep the Premises
(including exterior doors and entrances, all windows and mouldings and trim of
all doors and windows) and all partitions, door surfaces, fixtures, equipment
and appurtenances thereof (including lighting, heating and plumbing fixtures and
any air conditioning system) in good order, condition and repair, damage by
unavoidable casualty excepted (but not excluding damage from burglary or
attempted burglary of the Premises). When there is an air conditioning system,
Landlord will contract for service checks and filter changes and Xxxxxx agrees
to pay for such service calls and filter changes on the units serving Tenant's
Premises, all as set forth in Section 3.2 above. Without limiting the
generalities thereof, Tenant shall keep the glass of all windows, doors, and
showcases clean and presentable; replace immediately all broken glass in the
Premises; at reasonable intervals paint or refinish the interior of the
Premises; make any necessary repairs to, or replacements of, all door closure
apparatuses and mechanisms; keep all plumbing clean and in good state of repair
including pipes, drains, toilets, basins and those portions of the heating
system within the walls of the Premises; and keep all utilities within the
Premises in a good state of repair.
10.2 FAILURE TO MAINTAIN. If Tenant fails to keep and preserve the
Premises as set forth in Section 10.1 above, Landlord may at its option, put or
cause the same to be put in the condition and state of repair agreed upon, and
in such case, upon receipt of written statements from Landlord, Tenant shall
promptly pay the entire cost thereof as additional rent. Landlord shall have the
right, without liability, to enter the Premises for the purpose of making such
repairs.
10.3 REPAIRS BY LANDLORD. Landlord shall keep the roof, exterior walls,
foundations and buildings structure of the Premises in a good state of repair,
and shall accomplish such repairs as may be needed promptly after receipt of
written notice from Tenant. Should such repairs be required by reason of
Tenant's negligent acts, Tenant shall promptly pay Landlord for the cost
thereof as additional rent. Tenant shall immediately inform Landlord of any
necessary repairs and Tenant shall make none of such repairs without Landlord's
prior written consent. Landlord shall not be liable for any failure to make any
such repairs or to perform any maintenance required of Landlord hereunder unless
such failure shall persist for an unreasonable time after written notice of the
need of such repair is given to Landlord by Xxxxxx. Except as otherwise
specifically provided herein, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with Xxxxxx's
business arising from the making of any repairs, alterations or improvements in
or to any portion of the Premises or building of which the Premises is a part or
in or to fixtures, appurtenances and equipment herein.
10.4 SURRENDER OF PREMISES. At the expiration or sooner termination of
this Lease, Tenant shall return the Premises to Landlord in the same condition
in which received (or, if altered by Landlord or by Tenant with the Landlord's
consent, then the Premises shall be returned in such altered condition),
reasonable wear and tear excepted. Tenant shall remove all trade fixtures,
appliances and equipment which do not become a part of the Premises and
alterations which Landlord designates to be removed, and shall restore the
Premises to the condition they were in prior to the Installation of said items.
Tenant's obligation to perform this covenant shall survive the expiration or
termination of this Lease.
10.5 TAKING POSSESSION. By taking possession, Tenant shall be deemed to
have accepted the Premises as being in good and sanitary order, condition and
repair.
Page 7 of 14
Landlord's Initials /s/
Tenant's Initials /s/
10
11. COMMON AREAS
11.1 CONTROL OF COMMON AREAS BY LANDLORD. Landlord shall at all times
have the exclusive control and management of the Common Areas which shall
include but not be limited to all automobile parking areas, access roads,
driveways, entrances, retaining walls and exits thereto, the truck way or ways,
loading docks, package pick-up stations, washrooms, pedestrian malls, courts,
sidewalks and ramps, landscaped areas, exterior stairways, and other areas,
improvements, facilities and special services provided by Landlord for the
general use, in common, of tenants of the Xxxxxx Park, and their officers,
agents, employees and invitees. With respect to the Common Areas and facilities,
Landlord shall have the right from time to time to employ personnel; to
establish, modify and enforce reasonable rules and regulations; to construct,
maintain and operate lighting facilities; to police the Common Areas and
facilities; from time to time to change the area, level, location and
arrangement of parking areas and other facilities herein above referred to; to
restrict parking by Tenant, its officers, agents and employees to employee
parking areas; to close all or any portion of the Common Areas and facilities to
such extent as may, in the opinion of Landlord's counsel be legally sufficient
to prevent a dedication thereof or the accrual of any person or the public
therein; to close temporarily all or any portion of the parking areas or
facilities; to discourage non-customer parking; and to do and perform such other
acts in and to the Common Areas and facilities as, in the use of good business
judgment, Landlord shall determine to be advisable with a view to the
improvement of the convenience and use thereof by Tenants of the Xxxxxx Park,
their employees, invitees and customers.
11.2 LICENSE. All Common Areas and facilities, excluding Tenant's
physical space, which Tenant may be permitted to use and occupy, are to be used
and occupied under a revocable license. If the amount of such areas or
facilities be diminished, such diminution shall not be deemed constructive or
actual eviction, Landlord shall not be subject to any liability, nor shall
Tenant be entitled to any compensation or diminution or abatement of rent. In
addition, Landlord shall provide parking to reasonably accommodate the operation
of Tenant's business.
11.3 MAINTENANCE CHARGE. Tenant shall pay to Landlord, as additional
rent, in the manner provided in Section 3.2 a monthly maintenance charge to
defray the operating cost of the Common Areas and facilities. The amount of the
monthly Maintenance Charge shall be equal to 1/12 of Tenant's estimated pro rata
share of the operating costs for the calendar year, which share shall be
determined by multiplying such costs by a fraction, the numerator of which is
the total floor area of the leased Premises and the denominator of which is the
total gross leasable floor area of Xxxxxx Park on the first day of such calendar
year. For purposes of this paragraph, the term "operating cost of the Common
Areas and facilities" means the total cost and expense incurred in operating,
accounting, maintaining, administering and cleaning the Common Areas and
facilities, actually used or available for use by Tenant and the employees,
agents, servants, customers and invitees of Tenant, specifically including,
without limitation, gardening and landscaping, the cost of public liability and
property damage insurance, repairs, asphalt patching, line painting, minor roof
repairs, lighting, sanitary control, removal of snow, trash rubbish, garbage and
other refuse, machinery and equipment used in such maintenance, and the cost of
personnel to implement such services, including the policing of and traffic
control on the Common Areas and facilities. Management fees shall be limited to
the lesser of Fair Market Value or five percent (5%)
12. ALTERATIONS
12.1 ACCEPTANCE OF LEASE PREMISES. Upon acceptance of the Premises by
Xxxxxx, Tenant shall acknowledge to Landlord that Xxxxxx has inspected the
leased Premises and accepts them in their present condition or else shall notify
Landlord of any deficiencies then apparent.
12.2 ALTERATIONS BY TENANT. Tenant shall not make any alterations,
additions or improvements in or to the leased Premises without the prior written
consent of Landlord, which consent may be reasonably subject to such conditions
as Landlord may deem appropriate. Any such alterations, additions or
improvements consented to by Landlord shall be made at Tenant's sole expense.
Tenant shall secure
Page 8 of 14
Landlord's Initials /s/
Tenant's Initials /s/
11
any and all governmental permits required in connection with any such work, and
shall hold Landlord harmless from any and all liability (including attorney's
fees) and any and all liens resulting therefrom. All alterations, additions and
improvements (and expressly including all light fixtures and floor coverings),
except trade fixtures and appliances and equipment which do not become a part of
the leased Premises, excepting cabinets and general equipment installed by
Tenant which may be removed provided Tenant repairs all damage caused by their
removal, shall immediately become the property of Landlord without any
obligation to pay therefor, and shall not be removed by Tenant. Upon the
expiration or sooner termination of the Term hereof, at Landlord's option Tenant
shall at Tenant's sole cost and expense, forthwith and with all due diligence,
remove any alterations, additions, or improvements made by Tenant, which
Landlord designates to be removed, and Tenant shall, forthwith and with all due
diligence, at its sole cost and expense, repair any damage to the Premises
caused by such removal.
13. ASSIGNMENT AND SUBLETTING
Tenant shall not assign, transfer, mortgage, pledge, hypothecate or
encumber this Lease or any interest therein, nor sublet the whole or any part of
the Premises, nor shall this Lease or any interest hereunder be assignable or
transferable by operation of law or by any process or proceeding of any court,
or otherwise, without the prior written consent of Landlord which consent may be
reasonably subject to such conditions as Landlord may deem appropriate and which
consent may not be unreasonably withheld. Without in any way limiting Landlord's
right to refuse to give such consent for any other reason or reasons, Landlord
reserves the right to refuse to give such consent unless Xxxxxx remains fully
liable during the unexpired Lease Term hereof and Landlord further reserves the
right to refuse to give such consent if in Landlord's reasonable business
judgment the quality of merchandising experience or the financial worth of the
proposed new Tenant is less than that of the Tenant executing this Lease or of
Tenant and Xxxxxx's Guarantor as the case may be. Xxxxxx agrees to reimburse
Landlord for Landlord's reasonable attorneys' fees incurred in conjunction with
the processing and documentation of any such requested transfer, assignment,
subletting, licensing or concession agreement, change of fee ownership or
hypothecation of this Lease or Xxxxxx's interest in and to the Premises.
14. ACCESS BY LANDLORD
14.1 RIGHT OF ENTRY. Landlord or Landlord's employees, agents and/or
contractors shall have the right to enter the Premises at any time to examine
the same, and to show them to prospective purchasers or Tenants of the Building,
and to make such repairs, alterations, improvements or additions as Landlord may
deem reasonably necessary or desirable. If Tenant is not personally present to
permit entry and an entry is necessary, Landlord may in case of emergency
forcibly enter the same, without rendering Landlord liable therefor. Nothing
contained herein shall be construed to impose upon Landlord any duty of repair
of the Premises or Building of which the Premises are a part except as otherwise
specifically provided for herein.
14.2 EXCAVATION. If an excavation is made upon property adjacent to the
Premises, Tenant shall afford to the person causing or authorized to cause such
excavation, license to enter upon the Premises for the purpose of doing such
work as Landlord shall deem reasonably necessary to preserve the wall of the
building of which the Premises is a part from injury or damage and to support
the same by proper foundations, without any claim for damages or indemnification
against Landlord or diminution or abatement of rent.
15. DAMAGE OR DESTRUCTION
In the event the Premises are damaged to such an extent as to render
the same untenantable in whole or in a substantial part thereof, or are
destroyed, it shall be optional with the Landlord to repair or
Page 9 of 14
Landlord's Initials /s/
Tenant's Initials /s/
12
rebuild the same; and after the happening of any such contingency, the Tenant
shall give Landlord or Xxxxxxxx's agent immediate written notice thereof.
Landlord shall have not more than ninety (90) days after date of such
notification to notify the Tenant in writing of Landlord's intention to repair
or rebuild said Premises, or the part so damaged as aforesaid, and if Landlord
elects to repair or rebuild said Premises, Landlord shall prosecute the work of
such repairing or rebuilding without unnecessary delay, and during such period
the rent of said Premises shall be abated in the same ratio that that portion of
the Premises rendered for the time being unfit for occupancy shall bear to the
whole of the leased Premises. If the Landlord shall fail to give the notice
aforesaid, Tenant shall have the right to declare his Lease terminated by
written notice upon the Landlord or Landlord's agent. In the event the building
in which the Premises hereby leased are located shall be damaged (even though
the Premises hereby shall not be damaged thereby) to such an extent that in the
opinion of Landlord it shall not be practical to repair or rebuild, or is
destroyed, then it shall be optional with Landlord to terminate this Lease by
written notice served on Tenant within ninety (90) days after such damage or
destruction.
16. DEFAULT AND RE-ENTRY
If any rents reserved herein or any part thereof shall be and remain
unpaid ten (10) days after the date they shall become due, or if Tenant shall
violate or default in any of the covenants or agreements herein contained, then
the Landlord may elect to:
(a) terminate this Lease, in which event Tenant shall immediately pay
to Landlord all rent and other sums accrued to date plus the then present value
of the total rent and other sums reserved or due under the Lease for the balance
of the lease term. Tenant shall receive a credit against the amount due pursuant
to this subparagraph(s) equal to the reasonable rental value (which Tenant
proves by a preponderance of the evidence) of the Premises for the balance of
the lease term;
(b) without terminating this Lease relet all or any part of the
Premises for the account of Tenant upon such terms and conditions as Landlord
may deem advisable, in which event the rents received on such reletting shall be
applied first to the expenses of reletting and collection (including without
limitation, all necessary renovation, repair and alteration of the Premises,
reasonable attorney fees, real estate commissions and rental or other
concessions granted to a new tenant) and thereafter to payment of all sums due
or become due Landlord hereunder, and if a sufficient amount is not realized to
pay such sums and other charges Tenant shall pay monthly to Landlord any
deficiency and Landlord may bring, at any time, an action for the entire amount
of the deficiency which will accrue during the balance of the lease term; or
(c) pursue any other right or remedy Landlord may have under the laws
of the State of Washington.
No action of Landlord shall terminate this Lease unless Landlord
notifies Tenant in writing that Landlord elects to terminate this Lease.
Landlord shall in no way be responsible or liable for any failure to relet the
property or any part thereof, or for any failure to collect any rent due upon
reletting. No reentry by Landlord shall excuse or relieve Tenant of its
liability and obligations under this lease and such liability and obligations
shall survive any such action by Landlord. Any sums received by Landlord upon
reletting of the property in excess of the rent and other sums due by Tenant
hereunder shall be the sole property of Landlord and Landlord shall not be
required to pay over any such sum to Tenant. Xxxxxx assumes full responsibility
to mitigate damages resulting from Xxxxxx's breach of abandonment by obtaining a
subtenant or assignee reasonably acceptable to Landlord. Landlord shall have no
responsibility to mitigate damages resulting from Xxxxxx's breach or abandonment
other than to not unreasonably withhold consent to Xxxxxx's proposed subleases
and assignments. Tenant waives any defense or claim based on Landlord's failure
to mitigate damages except as provided in the preceding sentence.
Notwithstanding the foregoing Washington State Law shall prevail.
Page 10 of 14
Landlord's Initials /s/
Tenant's Initials /s/
13
17. LATE CHARGES
Tenant hereby acknowledges that late payment by Tenant to Landlord of
rent and other sums due hereunder will cause Landlord to incur costs not
contemplated by this 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 on Landlord by the
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or any other sum due from Tenant shall not be received by
Landlord or Landlord's designee within ten (10) days after such amount shall be
due, Tenant shall pay to Landlord a late charge equal to five percent (5%) of
such overdue amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Landlord will incur by reason of late
payment by Xxxxxx. Acceptance of such late charge by 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 rights and remedies granted
hereunder. A twenty-five dollar ($25.00) charge shall be paid to Landlord for
any returned check.
18. COSTS AND ATTORNEYS' FEES
In the event of an action (or any appeal thereof) between the parties
hereto to enforce any of the terms or provisions of this Lease, the successful
party shall be entitled to recover from the unsuccessful party, in addition to
any other award, a reasonable sum as attorney fees to be determined by the court
and included as a part of the judgment.
19. NON-WAIVER OF BREACH
The failure of the Landlord or Tenant to insist upon strict performance
of any of the covenants and agreements of this Lease, or to exercise any option
herein conferred in any one or more instances, shall not be construed to be a
waiver or relinquishment of any such, or any other covenants or agreements, but
the same shall be and remain in full force and effect.
20. REMOVAL OF PROPERTY
In the event of any entry in, or taking possession of, the leased
Premises as aforesaid, the Landlord shall have the right, which right shall not
be exercised unreasonably, but not the obligation, to remove from the leased
Premises all personal property located therein, and may store the same in any
place selected by Landlord, including but not limited to a public warehouse, at
the expense and risk of the owners thereof, with the right to sell such stored
property, without notice to Tenant, after it has been stored for a period of
thirty (30) days or more, the proceeds of such sale to be applied first to the
cost of such sale, second to the payment of the charges for storage, if any, and
third to the payment of any other sums of money which may then be due from
Tenant to Landlord under any of the terms hereof, the balance, if any, to be
paid to Tenant. Landlord shall not remove any property without reasonable
advance notice to Tenant.
21. HEIRS AND SUCCESSORS
Subject to the provisions hereof pertaining to Assignment and
Subletting, the covenants and agreements of this Lease shall be binding upon the
heirs, legal representatives, successors and assigns of any or all of the
parties hereto.
22. HOLD OVER
If the Tenant shall, with the written consent of Landlord, hold over
after the expiration of the Term of this Lease, such tenancy shall be for an
indefinite period of time on the month-to-month tenancy, which tenancy may be
terminated as provided by the laws of the State of Washington. During such
tenancy, Xxxxxx agrees to pay to the Landlord the same rate of rental as set
forth herein, unless a different rate is agreed upon, and to be bound by all of
the terms, covenants, and conditions as herein specified, so far as applicable.
If Tenant shall, without the written consent of Landlord, hold over after
Page 11 of 14
Landlord's Initials /s/
Tenant's Initials /s/
14
the expiration of the term of this Lease, such tenancy shall be month-to-month,
on the same terms and conditions as contained herein; provided, however, the
rental rate shall be twice one and one quarter (1 1/4) that in effect during the
last month of the lease term.
23. SUBORDINATION, QUIET ENJOYMENT
This Lease is subject to and is hereby subordinated to all present and
future mortgages, deeds of trust and other encumbrances affecting the leased
Premises or the property of which said Premises are a part. Tenant will, upon
demand by Landlord, execute such instruments as may be required at any time, and
from time to time, to subordinate the rights and interests of the Tenant under
this Lease to the lien of any mortgage or trust deed at any time placed on the
land of which the leased Premises are a part; provided, however, that such
subordination shall not affect Tenant's right to possession, use and occupancy
of the leased Premises so long as Tenant shall not be in default under any of
the terms or conditions of this Lease, Tenant further agrees:
That any such subordination agreement will contain a provision
satisfactory to Landlord's financing lender whereby Tenant will agree, in the
event of foreclosure of any such mortgage or trust deed to attorn to and
recognize as its Landlord under the terms of this Lease said lender or any
purchaser of the leased property at a foreclosure sale or their heirs,
successors, or assigns, and that it will execute and deliver to such lender an
Estoppel Certificate in form satisfactory to such lender.
24. PERSONAL PROPERTY AND TRADE FIXTURES
It is contemplated that certain furniture, fixtures and equipment to be
installed by Tenant in the leased Premises, are or may be either leased by
Tenant or purchased by Tenant from a lessor or conditional seller or otherwise
hypothecated to a third party. In this connection, it is agreed that all of such
furniture, fixtures and equipment installed by Tenant in the leased Premises
shall at all times be and remain personal property, regardless of the method in
which the same are affixed to the Premises, and shall remain the personal
property of Tenant and/or such third party. Landlord specifically agrees that
its rights, if any, in such furniture, fixtures and equipment shall at all times
be subject and subordinate to the rights of any such described third party.
Xxxxxxxx agrees to execute, upon request, any documents reasonably required by
any such described third party in order to effectuate the purposes of this
paragraph, it being specifically agreed by Landlord herein that any such third
party shall have the right to remove the furniture, fixtures or equipment from
the leased Premises in the event of the default of Tenant in complying with its
agreements relating to such furniture, fixtures and equipment. Tenant agrees to
repair any damage caused by any such removal at its expense.
25. CONDEMNATION
If the Premises or any portion thereof are taken under the power of
eminent domain, or sold by Landlord under the threat of the exercise of said
power (all of which is referred to as "Condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever occurs first. If more than ten percent (10%) of
the floor area of any buildings on the Premises, or more than twenty-five
percent (25%) of the land area of the Premises not covered with buildings, is
taken by Condemnation, either Landlord or Tenant may terminate this Lease as of
the date the condemning authority takes possession, by notice in writing of such
election within twenty (20) days after Landlord shall have notified Tenant of
the taking, or in the absence of such notice then within twenty (20) days after
the condemning authority shall have taken possession. If this Lease is not
terminated by either Landlord or Tenant then it shall remain in full force and
effect as to the portion of the Premises remaining, provided the rent shall be
reduced in the proportion that the floor area of the buildings taken within the
Premises bears to the total floor area of all buildings located on the Premises.
In the event this Lease is not so terminated then Landlord agrees, at Xxxxxxxx's
sole cost, to restore the Premises to a complete unit of like quality and
character as existed prior to the condemnation as soon as reasonably possible.
All awards for the taking of any part of the Premises or any payment made under
Page 12 of 14
Landlord's Initials /s/
Tenant's Initials /s/
15
the threat of the exercise of power of eminent domain shall be the property of
Landlord, whether made as compensation for diminution of value of a leasehold or
for the taking of the fee or as severance damages; provided, however, that
Tenant shall be entitled to any award for loss of or damage to Xxxxxx's trade
fixtures and removable personal property. In the event that this Lease is not
terminated by reason of such Condemnation, Landlord shall, to the extent of
severance damages received by Landlord in connection with such Condemnation,
repair any damage to the Premises caused by such Condemnation except to the
extent that Xxxxxx has been reimbursed therefor by the condemning authority.
26. NOTICES
Wherever under this Lease provision is made for any demand, notice or
declaration of any kind, or where it is deemed desirable or necessary by either
party to give or serve any such notice, demand or declaration to the other
party, it shall be in writing and served either personally or sent by United
States mail, postage prepaid, addressed to the address set forth herein below:
Landlord: Tenant:
The Xxxxx Company Optiva Corporation
0000 000xx Xxx XX 00000 XX 00xx Xx. Xxxxx X-0
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
27. CORPORATE AUTHORITY
If Tenant is a corporation, each individual executing this Lease on
behalf of said corporation represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation in accordance with
a duly adopted resolution of the Board of Directors of said corporation or in
accordance with the by-laws of said corporation, and that this Lease is binding
upon said corporation in accordance with its terms. If Tenant is a corporation
Tenant shall, within thirty (30) days after execution of this Lease, deliver to
Landlord a certified copy of a resolution of the Board of Directors of said
corporation substantially the same as or identical to Exhibit D authorizing or
ratifying the execution of this Lease.
28. MISCELLANEOUS
28.1 TRANSFER OF LANDLORD'S INTEREST. In the event of a sale or
conveyance by Landlord of Landlord's interest in the Premises other than a
transfer for security purposes only, Landlord shall be relieved from, after the
date specified in such notice of transfer, all obligations and liabilities
accruing thereafter on the part of the Landlord, provided that any funds in the
hands of Landlord at the time of transfer in which Tenant has an interest, shall
be delivered to the successor of Landlord. This Lease shall not be affected by
any such sale and Xxxxxx agrees to attorn to the purchaser or assignee, provided
all Landlord's obligations hereunder are assumed in writing by the transferee.
28.2 SEVERABILITY. If any term or provision of this Lease shall, to any
extent, be determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforceable to the
fullest extent permitted by law.
28.3 TIME; JOINT AND SEVERAL LIABILITY. Time is of the essence of this
Lease and each and every provision hereof, except as to the conditions relating
to the delivery of possession of the Premises to Tenant. All the terms,
covenants and conditions contained in this Lease to be performed by either
party, if such party shall consist of more than one person or organization,
shall be deemed to be Joint and Several, and all rights and remedies of the
parties shall be cumulative and non-exclusive of any other remedy at law or in
equity.
Page 13 of 14
Landlord's Initials /s/
Tenant's Initials /s/
16
28.4 MEMORANDUM OF LEASE. This Lease shall not be recorded, but upon
written request of Landlord or Tenant, a Memorandum of Lease describing the
Premises, giving the term of this Lease and the name and address of Landlord and
Tenant, referring to this Lease, and in form suitable under law as record
notice, shall be promptly executed, acknowledged and delivered by both parties;
such Memorandum of Lease may be recorded by either party.
29. HAZARDOUS AND TOXIC WASTE MATERIALS
Tenant shall be fully responsible for any release of any hazardous
waste or substance in or on or under the Premises or on any adjacent property
during the lease term by Xxxxxx, Xxxxxx's officers, directors, successors,
assigns, subleases, guests, invitees, visitors, employees, agents, contractors
in or about the Premises. Tenant shall promptly comply with all statutes,
regulations and ordinances 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 waste or substances in, on or under the Premises or any adjacent
property or incorporated in any of the improvements, at Tenant's sole expense
provided that Tenant shall have the right, prior to compliance, to exhaust
judicial and administrative remedies, including without limitation appeals and
judicial or administrative challenges to the validity of any government action,
with prior approval from Landlord which shall not be unreasonably withheld.
After notice to Tenant and a reasonable opportunity for Tenant to affect such
compliance, Landlord may, but shall not be obligated to, enter upon the Premises
and take such actions and incur such costs and expenses to affect such
compliance as it deems advisable to protect its interest in the Premises;
provided however, Landlord shall not be obligated to give Tenant notice and
opportunity to affect compliance if (i) such delay might result in material
adverse harm to Landlord or the Premises; (ii) Tenant has already had actual
knowledge of the situation and a reasonable opportunity to affect compliance; or
(iii) an emergency exists. Whether or not Tenant has actual knowledge of the
release of hazardous waste or substances on the Premises or any adjacent
property as a result of Tenant's use of 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 survive
any termination of this Lease. Tenant shall notify Landlord immediately of any
release of any hazardous waste or substance on the Premises. Tenant shall
indemnify and hold Landlord harmless from any and all losses, liabilities,
suits, obligations, fines, damages, judgments, penalties, claims, charges,
cleanup costs, remedial actions, costs and expenses (including, without
limitation, attorneys fees and disbursements) which may be imposed on,
reasonably incurred or paid by, or asserted against Landlord or the Premises by
reason of (i) any misrepresentation, breach of warranty or other default by
Tenant under this Lease resulting in the release of any hazardous waste or
substance or (ii) the act or omissions of Tenant, Xxxxxx's officers, directors,
successors, assigns, subleases, guests, invitees, visitors, employees, agents,
contractors resulting in the release of any hazardous waste or materials in, on
or under the Premises or any adjacent property. Landlord may perform any
inspections, audits or surveys of the Premises as Landlord deems necessary or
advisable at any time during the term of this Lease.
30. SPECIAL ARTICLES
The following numbered sections are made a part hereof, N/A , and
appear below on Addendum(s) N/A attached hereto. The following Exhibit(s) not
referenced in the lease above are also made a part hereof, D , and are attached
hereto.
In Witness Whereof, the Landlord and Xxxxxx have executed this Lease
the date and year first above written.
Landlord: Tenant:
By: By:
/s/ Xxxxx Xxxxx /s/ Xxxxxxx X. Xxxxx
--------------------------- -------------------------------
Vice President VP Finance & CFO
Page 14 of 14
Landlord's Initials /s/
Tenant's Initials /s/
