EXHIBIT 10.7
LEASE AGREEMENT
1. PARTIES. This Lease, dated for reference purposes only, October 1, 2003,
is made by and between QUEEN INVESTMENT COMPANY, LLC, a Washington Limited
Liability Company (herein called "Landlord"), and CELEBRATE XXXXXXX.XXX, INC., a
Washington corporation (herein called "Tenant").
2. PREMISES. Landlord hereby leases to Tenant and Tenant leases from Landlord
for the term, at the rental, and upon all of the conditions set forth herein,
that certain real property situated in the City of Xxxxxxxx, County of King,
State of Washington, commonly known as the 405 Business Park, located at 11218,
11220 and 00000 000xx Xxxxxx XX, Xxxxxxxx, Xxxxxxxxxx 00000 and described as
approximately 37,314 square. Said real property, including the land and all
improvements thereon, is herein called the "Premises". A map showing the
Premises is attached hereto as Exhibit A, AI and AII and the legal description
is shown on Exhibit AII and by this reference made a part hereof.
3. TERM.
3.1 TERM. The term of this Lease shall be for sixty (60) months
commencing on January 1, 2004, continuing through December 31, 2008, unless
sooner terminated pursuant to any provisions hereof.
3.2 DELAY IN COMMENCEMENT. Notwithstanding said commencement date, if
for any reason Landlord cannot deliver possession of the Premises to Tenant on
said date, Landlord shall not be subject to any liability therefore, nor shall
such failure affect the validity of this Lease or the obligations of Tenant
hereunder or extend the term hereof, but in such case Tenant shall not be
obligated to pay rent until possession of the Premises is tendered to Tenant. If
the actual term commencement date be a date other than the scheduled term
commencement date, all dates set forth in this Lease Agreement shall be adjusted
accordingly. However, if Landlord shall not have delivered possession of the
Premises within THIRTY (30) days from said commencement date, Tenant may, at
Tenant's option, by notice in writing to Landlord within ten (10) days
thereafter, cancel this lease. If either party cancels as herein provided,
Landlord shall return any money previously deposited by Tenant and the parties
shall be discharged from all obligations hereunder.
3.3 EARLY POSSESSION. In the event that Landlord shall permit Tenant to
occupy the Premises prior to the commencement date of the term, such occupancy
shall be subject to all of the provisions of this Lease. Said early possession
shall not advance the termination date of this Lease.
4. RENT. Tenant shall pay to Landlord as rent for the Premises those amounts
listed on Exhibit B. All rents, shall be paid in advance, on the first day of
each month of the term hereof. Rent for any period during the term hereof which
is for less than one (1) month shall be a pro rata portion of the monthly
installment. Rent shall be payable without notice or demand and without any
deduction, offset, or abatement, in lawful money of the United States of America
to Landlord at the address stated herein or to such other persons or at such
places as Landlord may designate in writing.
5. SECURITY DEPOSIT. Tenant shall APPLY ALL CURRENT SECURITY deposits with
Landlord upon execution hereof against the sum of Seventeen Thousand Five
Hundred Forty-Three and 62/100 Dollars ($17,543.62) as security for Tenant's
faithful performance of Tenant's obligations hereunder. THE EXCESS SECURITY
DEPOSIT AMOUNT HELD BY LANDLORD SHALL BE REIMBURSED IN FULL TO TENANT WITHIN 15
DAYS OF TERMINATION OF ALL PRIOR LEASES. If Tenant fails to pay rent or other
charges due hereunder, or otherwise defaults with respect to any provision of
this Lease, Landlord may use, apply or retain all or any portion of said deposit
for the payment of any rent or other charge in default or for the payment of any
other sum to which Landlord may become obligated by reason of Tenant's default,
or to compensate Landlord for any loss or damage which Landlord may suffer
thereby. If Landlord so uses or applies all or any portion of said deposit,
Tenant shall within ten (10) days after written demand therefore deposit cash
with Landlord in an amount sufficient to restore said deposit to the full amount
hereinabove stated, and Tenant's failure to do so shall be a breach of this
Lease and Landlord may at its option terminate this Lease. Landlord shall not be
required to keep said deposit separate from its general accounts. If Tenant
performs all of Tenant's obligations hereunder, said deposit or so much thereof
as has not theretofore been applied to Landlord, shall be returned, without
payment of interest or other increment for its use, to Tenant (or, at Landlord's
option, to the last assignee, if any, of Tenant's interest hereunder) within
fifteen (15) days after the expiration of the term hereof, or after Tenant has
vacated the Premises, which ever is later.
6. USE.
6.1 USE. The Premises shall be used and occupied only for warehousing,
manufacturing, packaging, mailing and associated office and marketing of
merchandise and accessory retail operations as are legal within City of Xxxxxxxx
zoning and for no other purpose without prior written consent of Landlord, which
consent may be withheld or conditioned as Landlord may deem appropriate within
the exercise of its REASONABLE discretion.
6.2 COMPLIANCE WITH LAW. Tenant shall, at Tenant's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders,
and requirements in effect during the term or any part of the term hereof
regulating the use by Tenant of the Premises. Tenant shall not use or permit the
use of the Premises in any manner that will tend to create waste or a nuisance,
or, if there shall be more than one tenant of the building containing the
Premises, which shall tend to unreasonably disturb such other tenants.
6.3 CONDITION OF PREMISES. Tenant hereby accepts the Premises in their
condition existing as of the date of the possession hereunder, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and accepts this Lease subject
thereto and to all matters disclosed thereby and by any exhibits attached
hereto. Tenant acknowledges that neither Landlord nor Landlord's agent has made
any representation or warranty as to the suitability of the Premises for the
conduct of Tenant's business.
6.4 INSURANCE CANCELLATION. Notwithstanding the provisions of Article
6.1 hereinabove, no use shall be made or permitted to be made of the Premises
nor acts done which will cause the cancellation of any insurance policy covering
said Premises or any building of which the Premises may be a part, and if
Tenant's use of the Premises causes an increase in said insurance rates, Tenant
shall pay any such increase.
6.5 LANDLORD'S RULES AND REGULATIONS. Tenant shall faithfully observe
and comply with the rules and regulations as attached in Exhibit C, which
Landlord shall from time to time, promulgate. Landlord reserves the right from
time to time to make reasonable modifications to said rules and regulations. The
additions and modifications to those rules and regulations shall be binding upon
Tenant upon delivery of a copy of them to Tenant. Landlord shall not be
responsible to Tenant for the nonperformance of any said rules and regulations
by any other tenants or occupants.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 LANDLORD'S OBLIGATIONS. Subject to the provisions of Article 9, and
except for damage caused by any negligent or intentional act or omission of
Tenant, Tenant's agents, employees, or invitees, Landlord, at Landlord's
expense, shall keep in good order, condition and repair the foundations,
exterior walls and the exterior roof (see Article 7.2 below) of the Premises.
Landlord shall not however, be obligated to paint such exterior, nor shall
Landlord be required to maintain the interior surface of exterior walls,
windows, doors or plate glass. Landlord shall have no obligations to make
repairs under this Article 7.1 until a reasonable time after receipt of written
notice of the need for such repairs. Tenant expressly waives the benefits of any
statute now or hereafter in effect which would otherwise afford Tenant the right
to make repairs at Landlord's expense.
7.2 TENANT'S OBLIGATIONS. Subject to the provisions of Article 7.1 and
Article 9. Tenant, at Tenant's expense, shall keep in good order, condition and
repair the TENANT RENTED SQUARE FOOT Premises and every part thereof (regardless
of whether the damaged portion of the Premises or the means of repairing the
same are accessible to Tenant) including, without limiting the generality of the
foregoing, all plumbing, heating, air conditioning, ventilating, electrical and
lighting facilities and equipment within the Premises, fixtures, interior walls,
ceilings, windows, doors, plate glass, and skylights, tenant identification
signs within the TENANT RENTED SQUARE FOOT Premises. During the term of this
Lease, Landlord shall contract for the maintenance of heating, ventilating and
air conditioning (HVAC) systems and the expenditure for such maintenance, shall
be charged and treated as a common area expense as stated in Article 19.
Landlord, at its option, may require Tenant to contract for and directly pay for
the maintenance of the HVAC system for the Premises. Roof repairs shall be
treated as a common area maintenance expense in accordance with Articles 11 and
19. Tenant shall reimburse Landlord for all damage done to the Premises, normal
wear and tear excepted, occasioned by any act or omission of Tenant or Tenant's
officers, contractors, agents, invitees, licensees, or employees, including, but
not limited to, cracking or breaking of glass.
The repainting of the exterior of the Premises, replacement of hallway
carpeting, and roofing shall be treated as a common area expense in accordance
with Articles 11 and 19. HOWEVER THE CHARGES TO TENANT SHALL BE BASED ON A SEVEN
YEAR LIFE OF SUCH EXPENSES AND SHALL BE AMORTIZED OVER THOSE SEVEN YEARS. TENANT
WILL BE RESPONSIBLE FOR THAT PORTION OF THE COST WHICH COVERS THE PORTION OF THE
SEVEN YEAR LIFE THAT TENANT REMAINS IN RENTED SQUARE FOOT SPACE.
7.3 SURRENDER. On the last day of the term hereof, or on any sooner
termination, Tenant shall surrender the Premises to Landlord in good condition,
broom clean, ordinary wear and tear excepted. Tenant shall repair any damage to
the Premises occasioned by its use thereof, or by the removal of Tenant's trade
fixtures, signs, furnishings and equipment pursuant to Article 7.5, which repair
shall include the patching and filling of holes and repair of structural damage.
7.4 LANDLORD'S RIGHTS. If Tenant fails to perform Tenant's obligations
under this Article 7, Landlord may, at its option (but shall not be required to)
enter upon the Premises, after ten (10) days prior written notice to Tenant or
with no prior written notice if an emergency, and put the same in good order,
condition and repair, and the cost thereof together with interest thereon at the
rate of TWELVE PERCENT (12%) per annum, shall become due and payable as
additional rent to Landlord together with Tenant's next rental installment.
7.5 ALTERATIONS AND ADDITIONS.
(a) Tenant shall not, without Landlord's prior written consent,
make any alterations, improvements, or additions in, on, or about the Premises,
except for nonstructural alterations not exceeding FIVE THOUSAND DOLLARS
($5,000) in cost. As a condition to giving such consent, Landlord may require
that Tenant remove any such alterations, improvements, additions or utility
installations at the expiration of the term, and to restore the Premises to
their prior condition.
(b) Before commencing any work relating to alterations, additions
and improvements affecting the Premises (none of which are required or requested
by Landlord, nor any obligation of Tenant under this Lease), Tenant shall notify
Landlord in writing of the expected date of commencement thereof. Landlord shall
then have the right at any time and from time to time to post and maintain on
the Premises such notices as Landlord reasonably deems necessary to protect the
Premises and Landlord from mechanic's liens, materialmen's liens, or any other
liens. In any event, Tenant shall pay, when due, all claims for labor or
materials furnished to or for Tenant or for use in the Premises. Tenant shall
not permit any mechanic's or materialmen's liens to be levied against the
Premises for any labor or material furnished to Tenant or claimed to have been
furnished to Tenant or to Tenant's agents or contractors in connection with work
of any character performed or claimed to have been performed on the Premises by
or at the direction of Tenant.
(c) Unless Landlord requires their removal, as set forth in
Article 7.5(a), all alterations, improvements, or additions which may be made on
the Premises shall become the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the term. Notwithstanding the
provisions of this Article 7.5(c), Tenant's machinery, equipment and trade
fixtures, other than that which is affixed to the Premises so that it cannot be
removed without material damage to the Premises, shall remain the property of
Tenant and may be removed by Tenant subject to the provisions of Article 7.3.
8. INSURANCE INDEMNITY.
8.1 INSURING PARTY. As used in this Article 8, the term "insuring party"
shall mean the party who has the obligation to obtain the insurance required
hereunder. The insuring party in this case shall be the Landlord. Tenant shall
reimburse Landlord for the cost of the insurance in accordance with Article 19.
8.2 LIABILITY INSURANCE. Tenant shall obtain and keep in force during
the term of this Lease a policy of comprehensive public liability insurance
insuring Landlord and Tenant against all liability arising out of the ownership,
use, occupancy or maintenance of the TENANT SQUARE FOOT RENTED Premises thereto.
Such insurance shall be in an amount of not less than One Million Dollars
($1,000,000) for injury or death of any person in any one accident or
occurrence. Such insurance shall further insure Landlord and Tenant against
liability for property damage of at least Five Hundred Thousand Dollars
($500,000). The limits of said insurance shall not, however, limit the liability
of Tenant hereunder. If Tenant shall fail to procure and maintain said insurance
Landlord may, but shall not be required to, procure and maintain the same, but
at the expense of Tenant.
8.3 PROPERTY INSURANCE. The insuring party shall obtain and keep in
force during the term of this Lease a policy or policies of insurance covering
loss or damage to the TENANT SQUARE FOOT RENTED Premises, in the amount of the
full replacement value thereof, or as required by any lender, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, special extended perils (all
risk) and sprinkler leakage. Said policy may include up to $1,000 deductible,
the cost of said deductible shall be borne in accordance with Articles 7.1 and
7.2. In addition thereto, insuring party shall maintain (i) full coverage plate
glass insurance on the TENANT SQUARE FOOT RENTED Premises, (ii) air conditioning
equipment, and other pressure vessels systems located in, on, or about the
Premises with limits of not less than One Hundred Thousand Dollars ($100,000)
per occurrence and (iii) rent loss insurance in favor of Landlord insuring
Landlord against any loss of rental from damage or destruction of the tenant
square foot rented premises for a period of least twelve (12) months from the
date of such damage or destruction. Said insurance shall provide for payment for
loss thereunder to Landlord or to the holder of a first mortgage or deed of
trust on the tenant rented square foot Premises. If the insuring party shall
fail to procure and maintain said insurance, the other party may, but shall not
be required to, procure and maintain the same, but at the expense of the Tenant.
8.4 INSURANCE POLICIES. Insurance required hereunder shall be in
companies rated Al, AAA or better in "Best Insurance Guide". The insuring party
shall deliver prior to possession, to the other party, copies of policies of
such insurance or certificates evidencing the existence and amounts of such
insurance with loss payable clauses satisfactory to Landlord. No such policy
shall be cancelable or subject to reduction of coverage or other modification
except after ten (10) days prior written notice to Landlord. If Tenant is the
insuring party, Tenant shall, within ten (10) days prior to the expiration of
such policies, furnish Landlord with renewals thereof, or Landlord may order
such insurance and charge the cost thereof to Tenant, which amount shall be
payable by Tenant upon demand. Tenant shall not do or permit to be done anything
that shall invalidate the insurance policies referred to in Article 8.3. Tenant
shall forthwith, upon Landlord's demand, reimburse Landlord for any additional
premiums attributable to any act or omission or operation of Tenant causing such
increase in the cost of insurance. If Landlord is the
insuring party, and if the insurance policies maintained hereunder cover other
improvements in addition to the Premises, Landlord shall deliver to Tenant a
written statement setting forth the amount of any such cost increase and showing
in reasonable detail the manner in which it has been computed.
8.5 WAIVER OF SUBROGATION. Tenant and Landlord each waive any and all
rights of recovery against the other, or against the officers, employees, agents
and representatives of the other, for loss of or damage to such waiving party or
its property or the property of others under its control, where such loss or
damage is insured against under any insurance policy in force at the time of
such loss or damage provided that this waiver of subrogation shall not in any
manner absolve Tenant of its obligations to make repairs pursuant to Article 7.2
or its obligation to indemnify Landlord pursuant to Article 8.6. Tenant and
Landlord shall, upon obtaining the policies of insurance required hereunder,
give notice to the insurance carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
8.6 HOLD HARMLESS. Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims arising from Tenant's use of the RENTED SQUARE
FOOT Premises or from the conduct of its business or from any activity, work or
things which may be permitted or suffered by Tenant in or about the Premises and
shall further indemnify, defend and hold Landlord harmless 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 provisions of this Lease
or arising from any negligence of Tenant or any of its agents, contractors,
employees or invitees and from any and all costs, attorney's fees, expenses and
liabilities incurred in the defense of any such claim or action or proceeding
brought thereon. Tenant hereby assumes all risk of damage to property or injury
to persons in tenant square foot rented Premises from any cause, and Tenant
hereby waives all claims in respect thereof against Landlord, excepting where
said damage arises out of negligence of Landlord.
8.7 EXEMPTION OF LANDLORD FROM LIABILITY. Tenant hereby agrees that
Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom or from damage to the goods, wares, merchandise or other
property of Tenant, or about the Premises, nor, unless through its negligence,
shall Landlord be liable for injury to the person of Tenant, Tenant's employees,
agents, contractors and invitees, whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water, or rain, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether the said damage or injury results from conditions arising upon
the Premises or upon other portions of the building of which the Premises are a
part, or from other sources or places, and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Landlord or Tenant. Landlord shall not be liable for any damages arising from
any act or neglect of any other tenant, if any, of the building in which the
Premises are located.
9. DAMAGE OR DESTRUCTION. Partial damage is defined as not greater than forty
percent (40%) of the total rentable square feet improved building area within
the Tenant space.
9.1 PARTIAL DAMAGE - INSURED. Subject to the provisions of Article 7.1,
if the Premises are damaged and such damage was caused by a casualty covered
under an insurance policy required to be maintained pursuant to Article 8.3,
Landlord shall, at Landlord's expense, repair such damage as soon as reasonably
possible, and this Lease shall continue in full force and effect.
9.2 DAMAGE - UNINSURED. In the event the Premises may be damaged or
destroyed by a casualty which is not covered by fire and extended coverage
insurance carried by Landlord, the Landlord shall restore same, provided that if
the damage or destruction is to an extent greater than ten percent (10%) of the
then replacement cost of improvements on the Premises (exclusive of Tenant's
trade fixtures and equipment and exclusive of foundations) then Landlord may
elect not to restore and to terminate this Lease. Landlord must give Tenant
written notice of its election not to restore within thirty (30) days from the
date Landlord received notice of such damage and, if not given, Landlord shall
be deemed to have elected to restore and in such event shall repair any damage
as soon as reasonably possible. In the event Landlord elects to give such notice
of Landlord's intention to cancel and terminate this Lease, Tenant shall have
the right within ten (10) days after receipt of such notice to give written
notice to Landlord of Tenant's intention to repair such damage at Tenant's
expense, without reimbursement from Landlord, in which event this Lease shall
continue in full force and effect and Tenant shall proceed to make such repairs
as soon as reasonably possible. If Tenant does not give such notice within such
ten (10) day period, this Lease shall be canceled and terminated as of the date
of the occurrence of such damage.
9.3 TOTAL DESTRUCTION. If at any time during the term hereof the
Premises are totally destroyed to an extent greater than forty percent (40%) of
rentable square feet from any cause whether or not covered by the insurance
required to be maintained by the insuring party pursuant to Article 8.3
(including total destruction required by any authorized public authority), this
Lease shall automatically terminate as of the date of such total destruction,
unless Landlord elects to repair per Paragraph 9.1.
9.4 ABATEMENT OF RENT.
(a) If the Premises are partially destroyed or damaged and
Landlord or Tenant repairs or restores them pursuant to the provisions of this
Article 9, the rent payable hereunder for the period during which such damage,
repair or restoration continues shall be abated in proportion to the degree to
which Tenant's reasonable use of the Premises is substantially impaired. Except
for abatement of rent, if any, Tenant shall have no claim against Landlord for
any damage suffered by reason of any such damage, destruction, repair or
restoration.
(b) If Landlord shall be obligated to repair or restore the
Premises under the provisions of this Article 9 and shall not complete such
repair or restoration within ninety (90) days after such obligations shall
accrue, Tenant may, at Tenant's option, cancel and terminate this Lease by
giving Landlord written notice of Tenant's election to do so at any time prior
to the commencement of such repair or restoration. In such event this Lease
shall terminate as of the date of such notice. Any abatement in rent shall be
computed as provided in Article 9.5(a).
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Tenant shall pay all real property taxes, as
additional rent, applicable to the tenant SQUARE FOOT RENTED Premises during the
term of this Lease including reasonable costs for attorneys or tax experts
secured by Landlord in seeking reduction of the taxes assessed on the Premises.
All such payments shall be made in accordance with Article 19. If any such taxes
shall cover any period of the time prior to or after expiration of the term
hereof, Tenant's share of such taxes shall be equitably prorated to cover only
the period of time within the tax fiscal year during which this Lease shall be
in effect.
10.2 DEFINITION OF "REAL PROPERTY TAXES". As used herein, the term "real
property tax" shall include any form of assessment, license fee, tax on rent,
levy, penalty, or tax (other than inheritance or estate taxes) imposed by any
authority having the direct or indirect power to tax, including city, county,
state or federal government, or any school, agricultural, lighting, drainage or
other improvement district thereof, as against any legal or equitable interest
of Landlord in the TENANT SQUARE FOOT RENTED Premises or in the real property of
which the Premises are a part, as against Landlord's right to rent or other
income therefrom, or as against Landlord's business of leasing the Premises, and
Tenant shall pay any and all charges and fees which may be imposed by the EPA or
other similar governmental regulations or authorities SUCH CAUSED BY TENANT.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Tenant's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportions to be determined by Landlord from the respective valuations
assigned in the assessor's work sheets or such other information as may be
reasonably available. LANDLORD'S REASONABLE DETERMINATION THEREOF, IN GOOD
FAITH, MAY BE REVIEWED BY TENANT AND F THE ALLOCATION IS NOT CORRECT AND NOT
BASED ON TENANT RENTED SQUARE FOOT PREMISES DIVIDED BY TOTAL BUILDING SQUARE
FEET, TENANT IS ENTITLED TO A NEW ALLOCATION.
10.4 PERSONAL PROPERTY TAXES.
(a) Tenant shall pay prior to delinquency all taxes assessed
against and levied upon leasehold improvements, fixtures, furnishings, equipment
and all other personal property of Tenant contained in the Premises or
elsewhere. Tenant shall cause said leasehold improvements, trade fixtures,
furnishings, equipment and all other personal property to be assessed and billed
separately from the real property of Landlord.
(b) If any of Tenant's personal property shall be assessed with
Landlord's real property, Tenant shall pay Landlord the taxes attributable to
Tenant within ten (10) days after receipt of a written statement setting forth
the taxes applicable to Tenant's property.
11. COMMON AREAS.
11.1 DEFINITIONS. The phrase "Common Areas" means all areas and
facilities inside or outside the buildings, or portions thereof actually
occupied by Tenant, that are provided and designated for general use and
convenience of Tenant and other tenants and their respective officers, agents,
and employees, customers and invitees. Common Areas include (but are not limited
to) lobbies, hallways, restrooms, common/electrical rooms, pedestrian sidewalks,
landscaped areas, roadways, parking areas, trash, water, sewer, metro, roof
repairs and exterior painting per Article 7.2, and railroad tracks, if any.
Common Areas shall also include the unexposed electrical, plumbing and sewage
systems lying outside the Premises and window frames, gutters and downspouts on
the building or buildings of which the Premises are a part. Landlord reserves
the rights from time to time to make changes in the shape, size, location,
number and extent of the land and improvements constituting the Common Areas.
Landlord may designate from time to time additional parcels of land for use as
part thereof, and any additional land so designated by Landlord for such use
shall be included until Landlord revokes such designation.
11.2 MAINTENANCE. During the term of this Lease, Landlord shall operate,
manage and maintain the Common Areas so that they are clean and free from
accumulation of debris, filth, rubbish and garbage. The manner in which such
Common Areas shall be so maintained, and the expenditures for such maintenance,
shall be at the sole direction of Landlord, and the use of the Common Areas
shall be subject to such reasonable regulations and changes therein as Landlord
shall make from time to time, including (hut not by way of limitation) the right
to close from time to time, if necessary, all or any portion of the Common Areas
to such extent as may be legally sufficient, in the opinion of Landlord's
counsel, to prevent a dedication thereof or the accrual of rights of any person
or the public therein, or to close temporarily all or any portion of such Common
Areas for such purposes.
11.3 TENANT'S RIGHTS AND OBLIGATIONS. Landlord hereby grants to Tenant,
during the term of this Lease, the license to use, for the benefit of Tenant and
its officers, agents, employees, customers, and invitees, in common with the
others entitled to such use, the Common Areas as they from time to time exist,
subject to the rights, powers, and privileges herein reserved to Landlord.
Storage, either permanent or temporary, of any materials, supplies or equipment
in the Common Areas is strictly prohibited. Should Tenant violate this provision
of the Lease, then in such event, Landlord may, at its option, either terminate
this Lease, or without notice to Tenant, remove said materials, supplies or
equipment from the Common Areas and place such items in storage, the cost
thereof to be reimbursed by Tenant within ten (10) days from receipt of a
statement submitted by Landlord. All subsequent costs in connection with the
storage of said items shall be paid to Landlord by Tenant as accrued. Failure of
Tenant to pay these charges within ten (10) days from receipt of statement shall
constitute a breach of this Lease. Tenant and its officers, agents, employees,
customers and invitees shall park their motor vehicles only in areas as
designated from time to time by Landlord for that purpose. Tenant shall not at
any time park or permit the parking of motor vehicles, belonging to it or to
others, so as to interfere with the pedestrian sidewalks, roadways, and loading
areas, or in any portion of the parking areas not designated by Landlord for
such use by Tenant. Tenant agrees that receiving and shipping goods and
merchandise and all removal of refuse shall be made only by way of the loading
areas constituting part of the Premises. Tenant shall repair, at its cost, all
deterioration or damages to the Common Areas occasioned by its lack of ordinary
care.
11.4 CONSTRUCTION. Landlord while engaged in constructing improvements or
making repairs or alterations in or about the Premises or in their vicinity
shall have the right to make reasonable use of the Common Areas.
12. UTILITIES. Tenant shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises, together
with any RELATED UTILITY AND SERVICES taxes thereon. If any such services are
not separately metered to Tenant, Tenant shall pay a reasonable proportion to be
determined by Landlord of all charges jointly metered with other premises in
accordance with Article 19. If during the term of the Lease, Tenant's use
creates above standard water, sewer consumption, in Landlord's REASONABLE
discretion, then Tenant shall, at Tenant's expense, be required to install a
separate water and/or electrical meter.
13. ASSIGNMENT AND SUBLETTING.
13.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Tenant's interest in this Lease or in the Premises
without Landlord's prior written consent, which Landlord shall not unreasonably
withhold. Any attempted assignment, transfer mortgage, encumbrance, or
subletting without consent shall be void and shall constitute a breach of this
Lease. Any transfer of Tenant's interest in this Lease or in the Premises from
Tenant by merger, consolidation, or liquidation, or by any subsequent change in
the ownership of FIFTY-ONE PERCENT (51%) or more of the capital stock of Tenant
or FIFTY-ONE PERCENT (51%) or more partnership interest of Tenant shall be
deemed a prohibited assignment within the meaning of this Article 13. No option
to extend, if any, may be assigned by Tenant and no subtenant shall have any
right to exercise any such option. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, SINCE THIS IS A LEASE COVERING MANY UNITS WITHIN THE 405 BUSINESS PARK,
TENANT CAN SUBLET ANY PORTION OF THE LEASED PREMISES PROVIDED IT MEETS CITY
CODE. THIS RIGHT WILL NOT BE WITHHELD BY LANDLORD.
13.2 NO RELEASE OF TENANT. Regardless of Landlord's consent, no
subletting or assignment shall release Tenant of Tenant's obligation to pay the
rent and to perform all other obligations to be performed by Tenant hereunder
for the term of this Lease. The acceptance of rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision hereof.
Consent to one assignment or subletting, shall not be deemed consent to any
subsequent assignment or subletting.
13.3 ASSIGNMENT FEE. In the event that Landlord shall consent to a
sublease or assignment under Article 13.1, Tenant shall pay to Landlord
reasonable fees not to exceed Five Hundred Dollars ($500) incurred in connection
with giving such consent.
All rent received by Tenant from its subtenants in excess of the rent
payable by Tenant to Landlord under this Lease shall be paid to Landlord, or any
sums to be paid by an assignee to Tenant in consideration of the assignment of
this Lease shall be paid to Landlord.
13.4 ASSIGNMENT BY LANDLORD. Landlord shall be permitted freely to assign
all of its rights and obligations hereunder, and upon such assignment of its
obligations, Landlord shall no longer be liable under this Lease. Tenant hereby
agrees to attorn to any assignee of Landlord's interest hereunder, whether such
assignment is voluntary or by operation of law.
13.5 REASONABLE CONSENT. In aid to the Landlord's determination whether
to consent to any assignment, transfer or subletting but without limiting
reasons for which such consent may be withheld, Tenant, at Landlord's request,
shall submit in writing to Landlord: (1) the name and legal composition of the
proposed subtenant, assignee or transferees, and the nature of the transaction
contemplated and purposes of it; (2) the nature of the proposed subtenant's
business to be carried on in the Premises; (3) the terms and provisions of the
proposed sublease, assignment or transfer; and (4) current financial statements
of the subtenant or assignee and such other reasonable financial information as
Landlord may request concerning the proposed transaction and the proposed
subtenant, assignee or transferee without limiting the authority of the Landlord
to withhold reasonably its consent, Landlord may require any assignee or
subtenant to assume all of the obligations of the Tenant with respect to this
Lease, but such assumption shall not release the Tenant.
14. DEFAULTS; REMEDIES.
14.1 DEFAULTS. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant:
(a) The vacation or abandonment of the Premises by Tenant for a
period of thirty (30) days or more.
(b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due where such
failure shall continue for a period of THIRTY (30) days after written notice
thereof from Landlord to Tenant.
(c) The failure by Tenant to observe or perform any of the
covenants, conditions, or provisions of this Lease to be observed or performed
by Tenant, other than described in Paragraph (b) above, where such failure shall
continue for a period of thirty (30) days after written notice thereof from
Landlord to Tenant provided, however, that if the nature of Tenant's default is
such that more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commenced such cure within
said thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(d) (i) The making by Tenant of any general assignment, or general
assignment for the benefit of creditors; (ii) the filing by or against Tenant of
a petition to have Tenant adjudged a bankrupt or petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days);
(iii) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises of Tenant's
interest in this Lease, where such seizure is not discharged within thirty (30)
days.
14.2 REMEDIES IN DEFAULT. In the event of any such default or breach by
Tenant, Landlord may at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have by reason of such default or breach:
(a) Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from tenant all damages incurred by
Landlord by reason of Tenant's default, including but not limited to: (i) the
cost of recovering possession of the Premises; and (ii) expenses of reletting,
including necessary renovation and alteration of the Premises; and (iii)
reasonable attorney's fees, and any real estate commission actually paid
applicable to the unexpired term of this Lease; and (iv) the worth at the time
of award determined by the court having jurisdiction thereof, of the unpaid rent
that had been earned at the time of termination of this Lease; and (v) any other
amount, and court costs necessary to compensate Landlord for all detriment
proximately caused by Tenant's default. Unpaid installments of rent or other
sums shall bear interest from the date due at the rate of TWELVE PERCENT (12%)
per annum. In the event Tenant shall have abandoned the Premises, Landlord shall
have the option of (1) retaking possession of the Premises, taking possession of
all personal property remaining in the Premises and recovering from Tenant the
amount specified in this Article 14.2(a), or (2) proceeding under Article
14.2(b). As used in this Paragraph, the term "the worth at the time of award" is
to be computed by discounting the total rent payable by the amount of the
discount rate of the Federal Reserve Bank of San Francisco at the time of the
award, plus one percent (1%).
(b) Maintain Tenant's right to possession, in which case this
Lease shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event, Landlord shall be entitled to all of Landlord's rights
and remedies under this Lease including the right to recover the rent as it
becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Premises are
located.
14.3 DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event later than thirty (30) days after written notice by Tenant
to Landlord and to the holder of any first mortgage or deed of trust covering
the Premises, where name and address shall have theretofore been furnished to
Tenant in writing, specifying wherein Landlord has failed to perform such
obligation; provided, however, that the nature of the Landlord's obligation is
such that more than thirty (30) days are required for performance, then Landlord
shall not be in default if Landlord commences performances within such thirty
(30) day period and thereafter diligently prosecutes the same to completion.
14.4 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 term of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sums due from Tenant shall
not be received by Landlord or Landlord's designee within FIFTEEN (15) days
after said amount is due then Tenant shall pay to Landlord a late charge of FIVE
PERCENT (5%) of such overdue amount, per each monthly period, but not any
interest thereon. In no event shall any late charge be required in violation of
any law.
A TWENTY-FIVE DOLLAR ($25.00) charge shall be paid Landlord for any
returned check.
The parties hereby agree that such late charge represents a fair and
reasonable estimate of the cost Landlord will incur by reason of late payment by
Tenant. 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.
14.5 CURE BY LANDLORD. Landlord, at any time after Tenant commits a
default, may cure the default at Tenant's cost. If Landlord at any time by
reason of Tenant's default, pays any sum or does any act that requires the
payment of any sum, the sum paid by Landlord at the time the sum is paid shall
be due from Tenant to Landlord, and if paid at a later date shall bear interest
at the rate of TWELVE PERCENT (12%) per annum from the date the sum is paid by
Landlord until Landlord is reimbursed by Tenant. The sum, together with interest
shall be deemed additional rent hereunder.
15. 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 herein 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 ANY of the floor area of
any building 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 rental shall be reduced in proportion to the floor area
of the buildings taken within the Premises as 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 Landlord's sole costs, as soon as
reasonably possible, to restore the Premises to a complete unit of like quality
and character as existed prior to the condemnation. All awards for the taking of
any part of the Premises or any payment made under 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 the leasehold or for the taking of the
fees or as severance damages; provided, however, that tenant shall be entitled
to any award for loss of or damage to Tenant's trade fixtures and removable
personal property.
16. GENERAL PROVISIONS.
16.1 ESTOPPEL CERTIFICATE.
(a) Tenant shall, at anytime, upon not less than ten (10) days
prior written notice from Landlord, execute, acknowledge and deliver to Landlord
a statement in writing (1) certifying that this Lease is unmodified and in full
force
and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and the
date to which the rent, security deposit, and other charges are paid in advance,
if any, and (ii) acknowledging that there are not, to Tenant's knowledge, any
uncured defaults on the part of Landlord hereunder, or specifying such defaults,
if any, which are claimed. Any such statement may be conclusively relied upon by
any prospective purchaser or encumbrancer of the Premises.
(b) Tenant's failure to deliver such statement within such time
period shall be conclusive upon Tenant that (i) this Lease is in full force and
effect, without modification except as may be represented by Landlord, (ii)
there are not uncured defaults in Landlord's performance, and (iii) not more
than one (1) month's rent has been paid in advance.
(c) if Landlord desires to finance or refinance the Premises, or
any part thereof, Tenant hereby agrees to deliver to any lender designated by
Landlord such financial statements of Tenant as may be reasonably required by
such lender. Such statements shall include the past three (3) years' financial
statements of Tenant. All such financial statements shall be received by
Landlord in confidence and shall be Used only for the purposes herein set forth.
Tenant shall execute any estoppel certificate, subordination agreement, and/or
attornment agreement submitted to Tenant by Landlord for purposes of said
financing; provided however, that Tenant shall be allowed the quiet use and
enjoyment of the Premises as long as Tenant is not in default under the terms of
this Lease.
16.2 LANDLORD'S INTEREST. The term "Landlord" as used herein shall mean
only the owner or owners at the time in question of the fee title, vendee's
interest under a real estate contract, or a tenant's interest in a ground lease
of the Premises. In the event of any transfer of such title or interest,
Landlord herein named (and in case of any subsequent transfers, the then
grantor) shall be relieved from and after the date of such transfer of all
liability as respects Landlord's obligations thereafter to be performed,
provided that any funds in the hands of Landlord or the then grantor at the time
of such transfer, in which Tenant has an interest, shall be delivered to the
grantee. The obligations contained in this Lease to be performed by Landlord
shall, subject to aforesaid, be binding upon Landlord's successors and assigns,
only during their respective periods of ownership.
16.3 SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
16.4 INTEREST ON PAST DUE OBLIGATIONS. Except as expressly herein
provided, any amount due to Landlord not paid when due shall bear interest at
TWELVE PERCENT (12%) per annum from the due date. Payment of such interest shall
not excuse or cure any default by Tenant under this Lease.
16.5 TIME OF ESSENCE. Time is of the essence.
16.6 CAPTIONS. Article and Paragraph captions are not a part hereof.
16.7 INCORPORATION OF PRIOR AGREEMENT; AMENDMENTS. This Lease contains
all agreements of the parties with respect to any matter mentioned herein. No
prior agreement or understanding pertaining to any such matter shall be
effective. This lease may be modified in writing only, signed by the parties in
interest at the time of modification.
16.8 WAIVERS. No waiver by Landlord of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Tenant of the same or any other provision. Landlord's consent to or approval of
any act shall not be deemed to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act by Tenant. The acceptance of rent
hereunder by Landlord shall not be a waiver of any preceding breach by Tenant of
any provision hereof, other than the failure of Tenant to pay the particular
rent so accepted regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such rent.
16.9 RECORDING. Tenant shall not record this Lease without Landlord's
prior written consent, and such recordation shall, at the option of Landlord,
constitute a noncurable default of Tenant hereunder. Either party shall, upon
request of the other, execute, acknowledge and deliver to the other a "short
form" memorandum of this Lease for recording purposes.
16.10 HOLDING OVER. If Tenant remains in possession of the Premises or any
part thereof after the expiration of the term hereof without the express written
consent of Landlord, such occupancy shall be a tenancy from month to month at a
rental in the amount of 115% of the last monthly rental plus all other charges
payable hereunder, and upon the terms hereof applicable to month to month
tenancy.
16.11 CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive, but shall wherever possible, be cumulative with all other remedies at
law or in equity.
16.12 COVENANTS AND CONDITIONS. Each provision of this Lease performable
by Tenant shall be deemed both a covenant and a condition.
16.13 BINDING EFFECT; CHOICE OF LAW; PRORATION. Subject to any provisions
hereof restricting assignment or subletting by Tenant and subject to the
provision of Article 13.2, this Lease shall bind the parties, their
representatives, successors and assigns. This Lease shall be governed by the
laws of the state where the Premises are located. All prorations shall be on the
basis of a thirty (30) day month.
16.14 SUBORDINATION.
(a) This Lease, at Landlord's option, shall be subordinate to any
ground lease, mortgage, deed of trust, or any hypothecation for security now or
hereafter placed upon the real property of which the Premises are a part and to
any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Tenant's right to quiet possession of the
Premises shall not be disturbed if Tenant is not in default and so long as
Tenant shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Tenant, this Lease shall be deemed prior to such mortgage,
deed of trust, or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease, or the date of
recording thereof.
(b) Tenant agrees to execute and deliver any documents required to
effectuate such subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be, and failing to do
so within ten (10) days after written demand, does hereby make, constitute and
irrevocably appoint Landlord as Tenant's attorney-in-fact and in Tenant's name,
place and stead, to do so.
16.15 ATTORNEYS' FEES. If either party named herein brings an action to
enforce the terms hereof or declare rights hereunder the prevailing party in any
such action, on trial or appeal, shall be entitled to his reasonable attorney's
fees to be paid by the losing party as fixed by the court.
16.16 LANDLORD'S ACCESS. Landlord and Landlord's agents shall have the
right to enter the Premises at reasonable times for the purpose of inspecting
the same, showing the same to prospective tenants, purchasers or lenders, and
making such alterations, repairs, improvements or additions to the Premises or
to the building of which they are a past as Landlord may deem necessary or
desirable. Landlord may at any time place on or about the Premises any ordinary
"For Sale" or "For Lease" signs, and Landlord may at any time during the last
one hundred twenty (120) days of the term hereof place on or about the Premises
any ordinary signs all without rebate or rent or liability to Tenant.
16.17 SIGNS. Tenant shall not place any sign upon the Premises without
Landlord's prior written consent. All signs installed by Tenant shall be removed
upon termination of this Lease with the sign location restored to its former
state. Tenant shall receive its pro-rata share of signage in the 405 Business
Park based on building total allocated signage as originally stated by city
code, times tenant total rented square feet and divided by 000 Xxxxxxxx Xxxx
total square footage.
16.18 MERGER. The voluntary or other surrender of this Lease by Tenant, or
a mutual cancellation thereof, shall not work a merger, and shall, at the option
of Landlord, terminate all or any existing subtenancies, or may, at the option
of Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
16.19 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 bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
16.20 LANDLORD'S LIABILITY. If Landlord is a joint venture or limited
partnership, the liability of the partners of Landlord pursuant to this Lease
shall be limited to assets of the partnership, and Tenant, its successors and
assigns, hereby waive all rights to proceed against any of the partners, or the
officers, shareholders, or directors of any corporate partner of Landlord,
except to the extent of their interest in the partnership. As used in this
Article, the term "Landlord" shall mean only the owner or owners at the time in
question of the fee title, vendee's interest under a real estate contract, or
its interest in a ground lease of the Premises, and in the event of any transfer
of such title or interest, Landlord herein named (and in case of any subsequent
transfers the then grantor) shall be relieved from and after the date of such
transfer, and any funds in the hands of Landlord or the obligations thereafter
to be performed; provided that any funds in the hands of Landlord or the then
grantor at the time of such transfer, in which Tenant has an interest, shall be
delivered to the grantee. The obligations contained in this Lease to be
performed by Landlord shall, subject as aforesaid, be binding on Landlord's
successors and assigns only during the respective period of ownership.
16.21 FINANCING. Tenant shall not execute any document purporting to
affect the Premises or any other property of which the Premises are a part,
including, without limitation, any financing statement, without prior written
consent of Landlord, which may be withheld or conditioned in Landlord's sole
discretion.
16.22 INABILITY TO PERFORM. This Lease and the obligations of the Tenant
hereunder shall not be effected or impaired because the Landlord is unable to
fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of strike, labor troubles, force majeure,
weather and acts of God, or any other cause beyond the reasonable control of the
Landlord, and Landlord shall not be liable for any such delay.
17. COMPLETION BOND. At any time, Tenant either desires to or is required to
make any repairs, alterations, additions, improvements or utility installations
thereon, pursuant to Articles 7.5 or 9.2 herein or otherwise, Landlord may
request tenant at Tenant's reasonable cost and expense, to obtain and provide to
Landlord a lien and completion bond in an amount equal to one and one-half
(1-1/2) times the estimated cost of such improvements, to insure Landlord
against any liability for mechanic's and materialmen's liens and to insure
completion of the work.
18. 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:
To Landlord: OUEEN INVESTMENT COMPANY, c/o
GVA Xxxxxx Xxxxxxx
00000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
To Tenant: Celebrate Xxxxxxx.xxx, Inc.
00000 000xx Xxx. XX #000
Xxxxxxxx, XX 00000
19. PAYMENT OF COMMON AREA UTILITIES AND EXPENSES, INSURANCE AND REAL PROPERTY
TAXES. In conjunction with monthly rent payments, Tenant shall each month pay as
additional rent, a sum representing Tenant's pro rata share of common area
utilities and expenses, insurance, real property taxes, a reasonable management
fee and any other nonsegregated expense obligation of Tenant. Such amount shall
be estimated annually by Landlord in good faith to reflect actual or anticipated
costs. Yearly and upon termination of this Lease, Landlord shall compute its
actual costs for such expenses during such period. Any overpayment by Tenant
shall be refunded or credited to subsequent charges and Tenant shall pay any
deficiency within fifteen (15) days after receipt of Landlord's statement.
Tenant's pro rata share shall be computed by multiplying the aforementioned
charges times a percentage obtained by dividing the TENANT'S total square
footage of the Premises by the total building square footage of the whole of
Landlord's land and improvements.
20. HAZARDOUS AND TOXIC WASTE MATERIALS. Tenant shall be responsible for all
expenses, damages, liabilities, including reasonable attorneys' fees, occurring
as a result of Tenant's use or release of any hazardous and toxic waste
materials as they may affect the leased premises. "Release" means any spill,
visible leak, pumping, pouring, explosion, emission, discharge, injection,
escape, dumping, disposing or other entering into the environment of any
substance, chemical, material, pollutant or contaminant at, in, by, from or
related to the leased premises. Tenant's obligations in this regard shall
survive and extend beyond the termination date of this lease. Whereby the
statute of limitation for any indemnification action shall not begin to run
until Landlord has sustained damage. Landlord is entitled to indemnity under the
terms of this Agreement.
21. SPECIAL ARTICLES. The following numbered articles are made a part hereof,
22.23,24.25,26,27 and 28 and appear below or are shown on Exhibit(s) A, AI, AII,
AIII, B, C, D, E and EI attached hereto.
23. AGENCY DISCLOSURE. At the signing of this Agreement, Agent Xxxxx Xxxxxxx,
GVA Xxxxxx Xxxxxxx represented Landlord, It is agreed between the parties that
no other brokers are recognized in this transaction other than Xxxxx Xxxxxxx.
The parties hereto have executed this Lease at the place and on the dates
specified immediately adjacent to their respective signatures.
Dated this 1st day of October, 2003,
at ____________________________________________________
"Landlord": QUEEN INVESTMENT COMPANY, LLC
By: /s/ Xxxxxxx Xxx, III
-----------------------------------------
Xxxxxxx Xxx, III
Title: President
----------------------------------------
President
Dated this 1st day of October, 2003,
at Kirkland, WA
"Tenant":CELEBRATE XXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
Title: CEO/President
