INDUSTRIAL/PARK LEASE
1.1 BASIC LEASE TERMS
a. DATE OF LEASE EXECUTION: October 27, 1997
b. TENANT: Percon, Inc.
Address (Leased Premises): 0000 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Address (For Notices): 0000 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
c. LANDLORD: WCP, LLC
Address (For Notices): 000 Xxxx Xxxx Xxxxxx, Xxxxx # 0
Xxxxxx, XX 00000
d. TENANT'S USE OF PREMISES: Office & Assembly Engineering
e. PREMISES AREA: Approximately 14,450 square feet
f. BUILDING AREA: Approximately 21,600 square feet
g. AGREED UPON PREMISES PERCENT OF BUILDING: 66.90 %
h. TERM OF LEASE: 9 Months. Commencement date: January 1, 1998.
Termination date: September 30, 1998
i. BASE MONTHLY RENT:
Term Base Monthly Rent
---- -----------------
January 1, 1998 through June 30, 1998 $15,173.00
July 1, 1998 through September 30, 1998 $16,618.00
j. ADDITIONAL RENT:
Additional rent as defined in
Paragraph 4.1B and 4.2.
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2.1 EXTENSION OPTION
Tenant shall have one option to extend the Termination Date for a
consecutive period of three (3) months to December 31, 1998. This
option may be exercised by Tenant giving Landlord written notice of
Xxxxxx's intent of exercise at least ninety (90) days prior to the
Termination Date. Tenant may exercise this Extension Option only if
Tenant is not in default of this Lease at the time of exercise. The
Base Monthly Rent for the Premises during the Extension Option Period
shall be $16,618.00. With the exception of Base Monthly Rent, the
extended term shall be upon the same provisions, terms and conditions
as contained in the original Lease term.
3.1 DELETED
4.1 RENT
A. Base Monthly Rent. Tenant shall pay to Landlord Base Monthly Rent
in the initial amount in Section 1.1 which shall be payable
monthly in advance on the first day of each and every calendar
month ("Base Monthly Rent").
B. Additional Rent. Tenant shall pay the Base Monthly Rent for the
Premises and any Additional Rent provided herein without
deduction or offset whatsoever. Additional Rent means amounts
determined under Paragraphs 4.1, and 4.2 of this Lease and any
other sums payable by Tenant to Landlord under this Lease. "Rent"
or "Rents" shall mean Base Monthly Rent and Additional Rent. All
Rent shall be paid by Tenant to Landlord monthly in advance on
the first day of every calendar month, at the address shown in
Section 1.1, or such other place as Landlord may designate in
writing from time to time. All rent shall be paid in lawful
currency of the United States of America. All rent due for any
partial month shall be prorated at the rate of 1/30th of the
total monthly rent per day. In the event any payment due from
Tenant to Landlord is not received by Landlord within ten days
from the due date thereof, Tenant shall pay to Landlord a late
charge equal to five (5) percent of the amount of the payment
coming due, but in no event shall such late charge exceed any
maximum charge now or hereafter established by law. In addition,
if any payment coming due from Tenant to Landlord is not received
by Landlord promptly when due, the same shall bear interest at
the prime rate of Key Bank of Oregon, or its successor, plus 2%,
on a fully floating basis (herein the "Default Rate"), but in no
event exceeding the maximum rate then allowed by law, from the
date first due until the date paid in full. Xxxxxxxx's right to
collect any late charge or interest shall be in addition to any
other rights or remedies available to Landlord hereunder or at
law or in equity. Any payments of any kind returned for
insufficient funds will be subject to an additional handling
charge of $25.00, and thereafter,
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Landlord may require Tenant to pay all future payments of rent or
other sums due by money order or cashier's check.
4.2 ADDITIONAL RENT
The purpose of this Section is to ensure that Tenant bear all Expenses
related to the Premises, and its proportionate share as set in
Paragraph 1.1g, of all Expenses that are reasonably related to the
use, maintenance, repair or replacement, and insurance of the
Building, with the exception of expenses stated in Paragraph 12.1A.
Accordingly, beginning on the commencement date, Tenant shall commence
the payment of Expenses as Additional Rent.
The term "Expenses" shall mean all costs and expenses reasonably
incurred by Landlord with respect to the use, operation, maintenance,
repair or replacement, and insurance of the Premises and the Building,
including, without limitation, the following costs (a.) through (e.).
a. All supplies, materials, labor, equipment, services, and all
utilities used in or related to the operation and maintenance of
the Premises and the Building.
b. All management, janitorial, insurance, and service agreement
costs related to the Premises and the Building.
c. All maintenance, replacement and repair costs relating to the
areas within the Premises and the Building, including, without
limitation, air conditioning systems, repairing roofs, sidewalks,
landscaping, service areas, driveways, parking areas (including
resurfacing and restriping parking areas), walkways, building
exteriors (including painting), signs and directories of the
Premises and the Building provided, however, that any such cost
which is characterized as a capital expenditure under generally
accepted accounting principles shall be amortized over the useful
life of such improvement, repair or replacement.
d. All Real Property Taxes, which shall mean and include all taxes,
assessments (general and special) and other impositions or
charges which may be taxed, charged, levied, assessed or imposed
upon all or any portion of or in relation to the Premises, the
Building, or any portion thereof, any leasehold estate in the
Premises or measured by rent from the Premises, including any
increase caused by the transfer, sale or encumbrance of the
Building or any portion thereof.
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e. Landlord or Landlord's agent shall notify Tenant and
will furnish Tenant with copies of services together
with a statement of Xxxxxx's proportionate share
thereof as described in Paragraph 1.1g Basic Lease
Terms of this Lease.
5.1 DELETED
6.1 DELETED
7.1 USE OF PREMISES AND BUILDING FACILITIES
Tenant shall use the Premises solely for the purposes set forth in
Section 1.1 and for no other purpose without obtaining the prior
written consent of Landlord. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty with
respect to the Premises or with respect to the suitability of the
Premises or the Building for the conduct of Tenant's business, nor has
Landlord agreed to undertake any modification, alteration or
improvement to the Premises or the Building, except as provided in
writing in this Lease. Tenant acknowledges that Landlord may from time
to time, without consultation and consent from Tenant, make such
modifications, alterations, deletions or improvements to the Building
as Landlord may deem necessary. Tenant shall promptly and at all times
comply with all applicable federal, state and local statutes, laws,
ordinances, orders and regulations affecting the Premises, and the
Building(herein "Laws"), as well as all master plans, restrictive
covenants, and also any reasonable rules and regulations that Landlord
may adopt from time to time. Tenant will not perform any act or carry
on any practices that may injure the Premises or the Building; that
may be a nuisance or menace to other tenants in the Building; or that
shall in any way interfere with the quiet enjoyment of such other
tenants. Tenant shall not use the Premises for sleeping, washing
clothes, cooking or the preparation, manufacture or mixing of anything
that might emit any objectionable odors, noises, vibrations or lights
onto such other tenants. If sound insulation is required to muffle
noise produced by Tenant on the Premises, Tenant at its own cost shall
provide all necessary insulation. Tenant shall not do anything on the
Premises which will overload any existing parking or service to the
Premises. Pets and/or animals of any type shall not be kept on the
Premises.
8.1 SIGNAGE
All signage shall comply with rules and regulations set forth by
Landlord and may be modified from time to time. Tenant shall place no
window covering (e.g., shades, blinds, curtains, drapes, screens, or
tinting materials), stickers, signs, lettering, banners or advertising
or display material on or near exterior windows or doors if such
materials are visible from the exterior of the Premises, without
Landlord's prior written consent. Similarly, Tenant may not install
any alarm boxes, foil protection tape or other security equipment on
the Premises without
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Xxxxxxxx's prior written consent. Any material violating this
provision may be destroyed by Landlord without compensation to Tenant.
9.1 PERSONAL PROPERTY TAXES
Tenant shall pay before delinquency all taxes, assessments, license
fees and public charges levied, assessed or imposed upon its business
operations as well as upon all trade fixtures, leasehold improvements,
merchandise and other personal property in or about the Premises.
10.1 PARKING
Landlord grants to Tenant and Tenant's customers, suppliers, employees
and invitees, an exclusive license to use the designated parking areas
of the Building for the use of motor vehicles during the term of this
Lease. Tenant shall be entitled to a pro-rata share of parking spaces,
based on Tenant's rentable square footage. Landlord reserves the right
at any time, to make reasonable rules and regulations relating to the
use of such parking areas, including reasonable restrictions on
parking by tenants and employees, to designate specific spaces for the
use of any tenant and to make changes in the parking layout from time
to time.
11.1 UTILITIES
Tenant shall pay for its proportionate share as set in paragraphs 1.1g
of all water, stormwater charges, gas, heat, light, power, sewer,
electricity, telephone or other service metered, chargeable or
provided to the Premises and the Building. Landlord reserves the right
to pay the costs of such utilities and to treat the same as an
"Expense" (subject to a right of Landlord to elect to require Tenant
to pay its actual portion of such Expense in lieu of its percentage
share).
12.1 MAINTENANCE
A. To maintain in good condition, Landlord shall repair or replace
the structural parts of the Premises, which are defined as the
foundations, bearing and exterior walls (excluding glass), at
Landlord's expense.
B. To maintain in good condition, Landlord shall repair or replace,
the unexposed electrical, plumbing and sewerage systems,
including without limitation, those portions of the systems lying
outside the Premises, exterior doors (excluding glass), window
frames, gutters and downspouts on the Building and the heating,
ventilating and air conditioning system servicing the Premises;
provided, however, the cost of all such maintenance shall be
considered "Expenses" for purposes of Section 4.2. Except as
provided above, Tenant shall maintain the Premises in good
condition, including, without limitation, maintaining and
repairing all walls, floors, ceilings, interior doors, exterior
and interior windows and fixtures as well as damage caused by
Tenant, its agents, employees or
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invitees. Upon expiration or termination of this Lease, subject
to other terms and conditions herein, Tenant shall surrender the
Premises to Landlord in the same condition as existed at the
commencement of the term, except for reasonable wear and tear or
damage caused by fire or other casualty for which Landlord has
received all funds necessary for restoration of the Premises from
insurance proceeds. Nothing herein shall excuse Tenant from
financial responsibility for property damage caused by Tenant or
Tenant's agents.
13.1 ALTERATIONS
(1) Tenant shall not make any alterations to the Premises that can be
seen from the exterior of the Premises, to any utility system
within the Premises or to any structural element of the Premises
without Landlord's prior written consent in each instance. If
Landlord gives its consent to such alterations, Landlord may post
notices in accordance with the laws of the state in which the
Premises are located. Any alterations made shall remain on and be
surrendered with the Premises upon expiration or termination of
this lease, except that Landlord may, within thirty (30) days
before or thirty (30) days after the expiration or termination of
this Lease or the termination of Tenant's right of possession,
elect to require Tenant to remove any alterations which Tenant
may have made to the Premises. If Landlord so elects, at its own
cost Tenant shall restore the Premises to the condition
designated by Landlord in its election, before the last day of
the term or within thirty (30) days after notice of its election
is given, whichever is later.
(2) Any request for Xxxxxxxx's consent to alterations shall be made
at least ten (10) days before any work may be commenced and shall
be accompanied by (i) detailed and costed plans and
specifications for all alterations, and (ii) Tenant's written
agreement to provide, upon completion of work, a complete set of
as-built plans and specifications. Landlord may withhold consent,
in its reasonable discretion and may issue such consent subject
to conditions. All alterations shall be constructed only after
obtaining Landlord's prior written consent and only in conformity
with all covenants, conditions and restrictions of record or any
applicable Laws. The issuance of Landlord's consent shall not be
a waiver of Tenant's obligation to comply with all Laws, nor
Landlord's opinion that such alterations are in compliance with
all Laws.
(3) Should Landlord consent in writing to Tenant's alteration of the
Premises, Tenant shall contract with a licensed, bonded and
insured contractor. Tenant shall secure all appropriate
governmental approvals and permits,
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and shall complete such alterations with due diligence in
compliance with the plans and specifications approved by
Landlord. All such construction shall be performed in a manner
which will not interfere with the quiet enjoyment of other
tenants of the Building.
(4) Tenant shall pay all costs for construction of alterations and
shall keep the Premises and the Building free and clear of all
liens which may result from work by third parties authorized by
Xxxxxx. If any such lien is filed, the same shall be an event of
default hereunder if Xxxxxx fails to remove such lien within ten
(10) days of the filing thereof, or engage in other remedial
actions to prevent any harm to Landlord.
14.1 INDEMNIFICATION OF LANDLORD
Subject to the provisions of Section 15.1, Tenant shall indemnify
Landlord and save Landlord harmless from and against any and all
claims, actions, damages, liability and expense in connection with
loss of life, personal injury or damage to property arising out of the
occupancy or use by Tenant of the Leased Premises, or occasioned
wholly or in part by any act or omission of Tenant, its agents,
contractors, employees or invitees. Subject to the provisions of
Section 15.1, Landlord shall indemnify Tenant and save Tenant harmless
from and against any and all claims, actions, damages, liability and
expense arising out of Landlord's willful misconduct or gross
negligence.
15.1 WAIVER OF SUBROGATION
Neither Landlord or Tenant shall be liable to the other or to any
insurance company (by way of subrogation or otherwise) insuring the
other party for any loss or damage to any building, structure, or
other tangible property, or any resulting loss of income or extra
expense, even though such loss or damage might have been caused by the
negligence of such party, its officers, directors, employees or agents
if any such loss or damage is covered by insurance benefiting the
party suffering such loss or damage or was required to be covered by
insurance pursuant to this lease.
15.2 TENANT'S LIABILITY INSURANCE
Tenant shall, at its own expense, purchase and maintain a General
Liability policy during the term of this lease and any renewal
thereof. The insuring agreement shall provide limits of not less than
$1,000,000 per occurrence for bodily injury, personal injury and
property damage, with an annual aggregate of not less than $2,000,000.
This policy shall name the Landlord as Additional Insured. A
Certificate of Insurance and a copy of the Endorsement issued by the
insurance carrier for each
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policy of insurance required by this Section 15.2 shall be delivered
to Landlord at the Commencement Date and within ten days prior to the
expiration of the term of each policy. Each certificate and policy of
insurance required by this Section 15.2 shall expressly evidence
insurance coverage as required by this Lease and shall contain an
endorsement or provision requiring at least thirty (30) days written
notice to Landlord prior to the expiration, cancellation, or reduction
in the amount of coverage of the policy.
15.3 TENANT'S PROPERTY INSURANCE
Landlord shall not be liable to Tenant for any damage to personal
property of Tenant on the leased premises, and Tenant shall maintain
insurance on such personal property at a value equal to replacement
costs.
16.1 DESTRUCTION
If during the term, the Premises and the Building, is more than
twenty-five percent (25%) destroyed (based upon replacement cost) from
any cause, or rendered inaccessible or unusable from any cause,
Landlord may, in its sole discretion, terminate this Lease by delivery
of notice to Tenant within thirty (30) days of such event without
compensation to Tenant. If Landlord does not elect to terminate this
Lease, and if, in Landlord's estimation, the Premises cannot be
restored within one hundred and eighty (180) days following such
destruction, the Landlord shall notify Tenant and Tenant may terminate
this Lease by delivery of notice to Landlord within thirty (30) days
of receipt of Landlord's notice. If Landlord does not terminate this
Lease and if in Landlord's estimation the Premises can be restored
within one hundred and eighty (180) days, then Landlord shall commence
to restore the Premises in compliance with then existing laws and
shall complete such restoration with due diligence. In such event,
this Lease shall remain in full force and effect, but there shall be
an abatement of Base Monthly Rent and Additional Rent between the date
of destruction and the date of completion of restoration, based on the
extent to which destruction interferes with Tenant's use of the
Premises; provided, there shall be no abatement if such damage is the
result of Tenant's negligence or wrongdoing. Landlord shall use its
discretion and best efforts to minimize inconvenience to Tenant
arising from restoration activities. Tenant shall not be entitled to
any damages or compensation for loss of use or any inconvenience
occasioned by damage or any repair or restoration.
17.1 CONDEMNATION
(1) Definitions. The following definitions shall apply. (1)
"Condemnation" means (a) the exercise of any governmental power
of eminent domain, whether by legal proceedings or otherwise by
xxxxxxxxx and (b) the voluntary sale or transfer by Landlord to
any condemnor either under
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threat of condemnation or while legal proceedings for
condemnation are proceeding; (2) "Date of Taking" means the date
the condemnor has the right to possession of the property being
condemned; (3) "Award" means all compensation, sums or anything
of value awarded, paid or received on a total or partial
condemnation; and (4) "Condemnor" means any public or
quasi-public authority, or private corporation or individual,
having a power of condemnation.
(2) Obligations to Be Governed by Xxxxx. If during the term of the
Lease there is any taking of all or any part of the Premises or
the Building, the rights and obligations of the parties shall be
determined pursuant to this Lease.
(3) Total or Partial Taking. If the Premises are totally taken by
condemnation, this Lease shall terminate on the Date of Taking.
If any portion of the Premises is taken by Condemnation, this
Lease shall terminate as to the part so taken as of the Date of
Taking, but shall in all other respects remain in effect, except
that Tenant can elect to terminate this Lease if the remaining
portion of the Premises is rendered unsuitable for Tenant's
continued use of the Premises. If Tenant elects to terminate this
Lease, Tenant must exercise its right to terminate by giving
notice to Landlord within thirty (30) days after the nature and
extent of the Condemnation have been finally determined. If
Tenant elects to terminate this Lease, Tenant shall also notify
Landlord of the date of termination, which date shall not be
earlier than thirty (30) days nor later than ninety (90) days
after Tenant has notified Landlord of its election to terminate;
except that this Lease shall terminate on the Date of Taking if
the Date of Taking falls on a date before the date of termination
as designated by Tenant. If any portion of the Premises is taken
by condemnation and this Lease remains in full force and effect,
on the Date of Taking the Base Monthly Rent shall be reduced by
an amount in the same ration as the total number of square feet
in the Premises taken bears to the total number of square feet in
the Premises immediately before the Date of Taking.
(4) Landlord's Election. Notwithstanding anything herein to the
contrary, if the Building or any portion thereof is taken by
Condemnation and the portion taken does not, in Landlord's
reasonable judgment, feasibly permit the continuation of the
operation of the Building by Xxxxxxxx, then Landlord shall have
the right to terminate this Lease by written notice given within
thirty (30) days following the Date of Taking.
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(5) Award. Tenant shall have no right or claim to all or any portion
of the Award; provided this shall not limit Tenant's right to
seek and to receive compensation for relocation expenses or the
value of its personal property taken, so long as receipt of such
compensation does not decrease the Award otherwise payable to
Landlord.
18.1 ASSIGNMENT OR SUBLEASE
Tenant shall not assign or sublet its interest in this Lease in whole
or in part without Landlords written consent; provided, however, that
the prohibition against assignment shall not include any assignment of
all of Tenant's interest hereunder to a related Company and / or that
Xxxxxx's interest hereunder that results from a merger or
consolidation of Tenant with another entity. The consent by Landlord
to any assignment shall not constitute a waiver of the necessity for
such consent to any subsequent assignment. Notwithstanding any
assignment, Tenant shall remain fully liable on this Lease and shall
not be released from performing any of the terms, covenants or
conditions of this Lease. Landlord shall not unreasonably withhold its
consent to any assignment provided that the proposed tenant is
compatible with Landlord's normal standards for the Building, as
determined by Landlord in good faith. If Xxxxxx proposes an assignment
to which Xxxxxxxx wishes to consent under this paragraph, Landlord
shall have the option of terminating this Lease and dealing directly
with the proposed assignee. Tenant shall pay any costs incurred by
Landlord in connection with the request for assignment, including
reasonable attorney's fees. Tenant shall require any proposed assignee
to provide financial information and other documents as reasonably
requested by Landlord.
19.1 DEFAULT
The occurrence of any of the following shall constitute a default by
Tenant: (a) Tenant fails to pay any payment coming due hereunder from
Tenant to Landlord and such failure is not cured within ten (10) days
after its due date; or (b) Tenant shall violate or fail to perform any
other covenant, condition or provision of this Lease within ten (10)
days after written notice thereof is given to Tenant by Landlord;
provided, however, that if the nature of Tenant's obligation is such
that more than ten (10) days are required for performance, then Tenant
shall not be in breach if Tenant commences performance within ten (10)
days after such notice and thereafter diligently prosecutes the cure
to completion.
20.1 LANDLORD'S REMEDIES
(1) Landlord shall have the following remedies if Tenant is in
material default. These remedies are not exclusive; they are
cumulative and in addition to any remedies now or later allowed
by law. Landlord may terminate this Lease and/or Xxxxxx's right
to possession of the Premises at
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any time. No act by Landlord other than giving notice to Tenant
shall terminate this Lease. Acts of maintenance, efforts to relet
the Premises, or the appointment of a receiver on Xxxxxxxx's
initiative to protect Xxxxxxxx's interest under this Lease shall
not constitute a termination of this Lease. Upon termination of
this Lease or of Tenant's right to possession, Xxxxxxxx has the
right to recover from Tenant: (A) The worth of the unpaid rent
that had been earned at the time of such termination; and (B) The
worth of the amount of the unpaid rent that would have been
earned after the date of such termination; and (C) Any other
amount, including court, attorney and collection costs, necessary
to compensate Landlord for all detriment proximately caused by
Xxxxxx's default. "The Worth," as used for Item 20.1(1)(A) in
this Paragraph is to be computed by allowing interest at the
Default Rate. "The Worth" as used for Item 20.1(1)(B) in this
Paragraph is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San Francisco at the
time of termination of Tenant's right of possession.
(2) All covenants and agreements to be performed by Tenant under any
of the terms of this Lease shall be performed by Tenant at
Tenant's sole cost and expense and without any abatement of rent.
If Tenant shall fail to pay any sum of money owed to any party
other than Landlord, for which it is liable hereunder, or if
Tenant shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for ten (10)
days after notice thereof by Landlord, Landlord may, without
waiving such default or any other right or remedy, shall not be
obligated to make any such payment or perform any such other act
to be made or performed by Tenant. All sums so paid by Xxxxxxxx
and all necessary incidental costs, together with interest
thereon at the Default Rate as set in Paragraph 4.1B from the
date of expenditure by Landlord, shall be payable to Landlord on
demand.
21.1 ENTRY ON PREMISES
Landlord and its authorized representatives shall have the right to
enter the Premises at all reasonable times with prior notice to Tenant
for any of the following purposes: (a) To determine whether the
Premises are in good condition and whether Tenant is complying with
its obligations under this Lease; (b) To do any necessary maintenance
and to make any restoration to the Premises or the Building that
Landlord has the right or obligation to perform; (c) To post "for
sale" signs at any time during the term, to post "for rent" or "for
lease" signs during the last ninety (90) days of the term, or during
any period while Tenant is in default; (d) To show the Premises to
prospective brokers, agents, buyers, tenants or persons interested in
leasing or purchasing the Premises, at any time
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during the term; or (e) To repair, maintain or improve the Premises
and to erect scaffolding and protective barricades around and about
the Premises but not so as to prevent entry to the Premises and to do
any other act or thing necessary for the safety or preservation of the
Premises or the Building. Landlord shall not be liable in any manner
for any inconvenience, disturbance, or loss of business, arising out
of Landlord's entry onto the Premises as provided in this Section.
Tenant shall not be entitled to an abatement or reduction of rent if
Landlord exercises any rights reserved in this Section. Landlord shall
conduct its activities on the Premises as provided herein in a manner
that will cause the least inconvenience, annoyance or disturbance to
Tenant. For each of these purposes, Landlord shall at all times have
and retain a key with which to unlock all the doors in, upon and about
the Premises, excluding Xxxxxx's vaults and safes. Tenant shall not
alter any lock or install a new or additional lock or bolt on any door
of the Premises without prior written consent of the Landlord. If
Landlord gives its consent, Tenant shall furnish Landlord with a key
for any such lock.
21.2 QUIET ENJOYMENT
Landlord warrants that so long as Tenant complies with all terms of
this lease it shall be entitled to peaceable and undisturbed
possession of the Premises free from any eviction or disturbance by
Landlord. Neither Landlord nor it's managing agent shall have any
liability to Tenant for loss or damages arising out of the acts of
other tenants of the Building or third parties, nor any liability for
any reason which exceeds the value of its interest in the Building.
22.1 SUBORDINATION
Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee or any beneficiary of a Deed of
Trust with a lien on the Building or any ground lessor with respect to
the Building, this Lease shall be subject and subordinate at all times
to (a) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building, and (b) the lien of any
mortgage or deed of trust which may now exist or hereafter be executed
in any amount for which the Building, ground leases or underlying
leases, or Landlord's interest or estate in any of said items is
specified as security. In the event that any ground lease or
underlying lease terminates for any reason or any mortgage or Deed of
Trust is foreclosed or a conveyance in lieu of foreclosure is made for
any reason, Tenant shall, notwithstanding any subordination, attorn to
and become the Tenant of the successor in interest to Landlord, at the
option of such successor in interest. Tenant covenants and agrees to
execute and deliver, upon demand by Xxxxxxxx and in the form requested
by Landlord any additional documents evidencing the priority or
subordination of the Lease with respect to any such ground lease or
the lien of any such mortgage or Deed of Trust. Tenant hereby
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irrevocably appoints Xxxxxxxx as attorney-in-fact of Tenant to
execute, deliver and record any such document in the name and on
behalf of Xxxxxx.
Tenant, within ten days from notice from Landlord, shall execute and
deliver to Landlord, in recordable form, certificates stating that
this Lease is not in default, is unmodified and in full force and
effect, or in full force and effect as modified, and stating the
modifications. This certificate should also state the amount of
current monthly rent, the dates to which rent has been paid in
advance, the amount of any security deposit and prepaid rent, and such
other matters as Landlord may request. Failure to deliver this
certificate to Landlord within ten days shall be conclusive upon
Tenant that this Lease is in full force and effect and has not been
modified except as may be represented by Landlord. In addition, in
connection with any sale or financing involving the Premises, Tenant
shall deliver to Landlord, within twenty (20) days of request by
Xxxxxxxx, a current financial statement of Tenant and of each
guarantor.
23.1 NOTICE
Any notice, demand, request, consent, approval or communication
desired by either party or required to be given, shall be in writing
and either served personally or sent by prepaid certified first class
mail, addressed as set forth in Section 1.1. Either party may change
its address by notification to the other party. Notice shall be deemed
to be communicated 48 hours from the time of such mailing, or upon the
time of service as provided in this Section.
24.1 WAIVER
No delay or omission in the exercise of any right or remedy by
Landlord or Tenant shall impair such right or remedy or be construed
as a waiver. No act or conduct of Landlord, including without
limitation, acceptance of the keys to the Premises, shall constitute
an acceptance of the surrender of the Premises by Tenant before the
expiration of the term. Only written notice from Landlord to Tenant
shall constitute acceptance of the surrender of the Premises and
accomplish termination of the Lease. Xxxxxxxx's consent to or approval
of any act by Tenant requiring Landlord's consent or approval shall
not be deemed to waive or render unnecessary Landlord's consent to or
approval of any subsequent act by Xxxxxx. Any waiver by Landlord of
any default must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of the Lease.
25.1 SURRENDER OF PREMISES; HOLDING OVER
Upon expiration of the term or the termination of this Lease or of
Tenant's right of possession, Tenant shall surrender to Landlord the
Premises, all tenant improvements, and alterations (except alterations
which Tenant has the right or
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obligation to remove) in good condition, except for ordinary wear and
tear. Tenant shall remove all personal property including, without
limitation, all wallpaper, paneling and other decorative improvements
or fixtures and shall perform all restoration made necessary by the
removal of any alterations or Tenant's personal property before the
expiration of the term, including for example, restoring all wall
surfaces to their condition prior to the commencement of this Lease.
Landlord can elect to retain or dispose of in any manner Xxxxxx's
personal property not removed from the Premises by Tenant prior to the
expiration of the term. Tenant waives all claims against Landlord for
any damage to Tenant resulting from Xxxxxxxx's retention or
disposition of Xxxxxx's personal property. Tenant shall be liable to
Landlord for Landlord's costs for storage, removal or disposal of
Tenant's personal property. If Xxxxxx fails to surrender the Premises
upon the expiration of the term, or upon the termination of this Lease
or of Tenant's right of possession, Tenant shall defend, indemnify and
hold Landlord harmless from all resulting loss or liability.
If Tenant, with Xxxxxxxx's consent, remains in possession of the
Premises after expiration of this Lease, such possession by Tenant
shall be deemed to be a month-to-month tenancy terminable on written
30-day notice at any time, by either party. All provisions of this
Lease, except those pertaining to term and rent, shall apply to the
month-to-month tenancy. Tenant shall pay Base Monthly Rent in the
amount of $19,508.00 plus 100% of said last month's estimate of
Xxxxxx's share of Expenses pursuant to Section 4.2.
27.1 MISCELLANEOUS PROVISIONS
(1) Time of Essence. Time is of the essence of each provision of this
Lease.
(2) Successor. This Lease shall be binding on and inure to the
benefit of the parties and their successors, except as provided
in Section 18.1 herein.
(3) Landlord's Consent. Any consent required by Landlord under this
Lease must be granted in writing. No such consent shall be
unreasonably withheld, but any consent may be issued subject to
reasonable conditions.
(4) Commissions. Each party represents that it has not had dealing
with any real estate broker, finder or other person with respect
to this Lease in any manner.
(5) Other Charges. If Landlord becomes a party to any litigation
concerning this Lease, the Premises or the Building, by reason of
any act or omission of Tenant or any agent, guest or invitee of
Tenant, Tenant shall be liable to
Page 14
Landlord for all attorneys fees and costs incurred by Landlord in
connection with such litigation, including any appeal or review.
In the event of litigation between Tenant and Landlord and/or any
other Protected Party, the prevailing party shall be entitled to
recover from the losing party all costs and attorneys fees
incurred both at and in preparation for trial and any appeal or
review. If Landlord employs a collection agency to recover
delinquent charges, Xxxxxx agrees to pay all collection agency
and attorneys' fees charged to Landlord in addition to rent, late
charges, interest and other sums payable under this Lease. Tenant
shall pay a charge of $75.00 to Landlord for preparation of a
demand for delinquent rent.
(6) Landlord's Successors. In the event of a sale or conveyance by
Landlord of the Premises, Building or a portion thereof, or of
Landlord's interest in the foregoing, the same shall operate to
release Landlord from any liability under this Lease, and in such
event Xxxxxxxx's successor in interest shall be solely
responsible for all obligations of Landlord under this Lease.
(7) Interpretation. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the Premises are
located. This Lease constitutes the entire agreement between the
parties with respect to the Premises and the Building, except for
such guarantees or modifications as may be executed in writing by
the parties from time to time. When required by the context of
this Lease, the singular shall include the plural, and the
masculine shall include the feminine and/or neuter. "Party" shall
mean Landlord or Tenant. If more than one person or entity
constitutes Tenant, the obligations imposed upon Tenant shall be
joint and several. The enforceability, invalidity or illegality
of any provision shall not render the other provisions
unenforceable, invalid or illegal.
(8) Third Parties. There are no third parties benefited hereby, this
Lease being intended solely for the benefit of Landlord and
Tenant. Notwithstanding the foregoing, the beneficiary under a
trust deed, or a mortgagee, holding a security interest in the
Premises shall be a third party beneficiary of the Tenant's
obligations set forth in Section 31.1 hereof and shall have the
right to enforce such provisions.
(9) Survival. All provisions of this Lease which contemplate
performance after the expiration or termination hereof or the
termination of Xxxxxx's right to possession hereunder, shall
survive any expiration or termination.
Page 15
28.1 EMISSIONS
Tenant shall not:
a. Discharge, emit or permit to be discharged or emitted, any
liquid, solid or gaseous matter, or any combination thereof, into
the atmosphere, the ground or any body of water, which matter, as
reasonably determined by Lessor or any governmental entity, does,
or may, pollute or contaminate the same, or is, or may become,
radioactive or does, or may adversely affect the (1) health or
safety of persons, wherever located, whether on the Premises or
anywhere else, (2) condition, use or enjoyment of the Premises or
any other real or personal property, whether on the Premises or
anywhere else, or (3) Premises or any of the improvements thereto
or thereon including buildings, foundations, pipes, utility
lines, landscaping or parking areas;
b. Produce, or permit to be produced, any intense glare, light or
heat except within an enclosed or screened area and then only in
such manner that the glare, light or heat shall not be
discernible from outside the Premises;
c. Create, or permit to be created, any sound pressure level which
will interfere with the quiet enjoyment of any real property
outside the Premises; or which will create a nuisance or violate
any Law, rule, regulation or requirement;
d. Create, or permit to be created, any ground vibration that is
discernible outside the Premises:
e. Transmit, receive or permit to be transmitted or received, any
electromagnetic, microwave or other radiation which is harmful or
hazardous to any person or property in, on or about the Premises,
or anywhere else.
28.2 STORAGE AND USE
(1) Storage. Subject to the uses permitted and prohibited to Tenant
under this lease, Tenant shall store in appropriate leak proof
containers all solid, liquid, or gaseous matter, or any
combination thereof, which matter, if discharged or emitted into
the atmosphere, the ground or any body of water, does or may (1)
pollute or contaminate the same, or (2) adversely affect the (i)
health or safety of persons, whether on the Premises or anywhere
else, (ii) condition, use or enjoyment of the Premises or any
real or personal property, whether on the Premises or anywhere
else, or (iii) Premises or any of the improvements thereto or
thereon.
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(2) Use. In addition, without Landlord's prior written consent,
Tenant shall not use, store or permit to remain on the Premises
any solid, liquid or gaseous matter which is, or may become,
radioactive. If Landlord does give its consent, Tenant shall
store the materials in such a manner that no radioactivity will
be detectable outside a designated storage area and Tenant shall
use the materials in such a manner that (1) no real or personal
property outside the designated storage area shall become
contaminated thereby or (2) there are and shall be no adverse
effects on the (i) health or safety of persons, whether on the
Premises or anywhere else, (ii) condition, use or enjoyment of
the Premises or any real or personal property thereon or therein,
or (iii) Premises or any of the improvements thereto or thereon.
28.3 DISPOSAL OF WASTE
(1) Refuse Disposal. Tenant shall not keep any trash, garbage, waste
or other refuse on the Premises except in sanitary containers and
shall regularly and frequently remove same from the Premises.
Tenant shall keep all incinerators, containers or other equipment
used for the storage or disposal of such materials in a clean and
sanitary condition.
(2) Sewage Disposal. Tenant shall properly dispose of all sanitary
sewage and shall not use the sewage system (1) for the disposal
of anything except sanitary sewage or (2) in excess of the lesser
of the amount (a) reasonably contemplated by the uses permitted
under this Lease or (b) permitted by any governmental entity.
Tenant shall keep the sewage disposal system free of all
obstructions and in good operating condition.
(3) Disposal of Other Waste. Tenant shall properly dispose of all
other waste or other matter delivered to, stored upon, located
upon or within, used on, or removed from, the premises in such a
manner that it does not, and will not, adversely affect the (1)
health or safety of persons, wherever located, whether on the
Premises or elsewhere, (2) condition, use or enjoyment of the
Premises or any other real or personal property, wherever
located, whether on the Premises or anywhere else, or (3)
Premises or any of the improvements thereto or thereon including
buildings, foundations, pipes, utility lines, landscaping or
parking.
29.1 COMPLIANCE WITH LAW
Notwithstanding any other provision in the Lease to the contrary,
Tenant shall comply with all Laws in complying with its obligations
under this Lease, and in
Page 17
particular, Laws relating to the storage, use and disposal of
hazardous or toxic matter.
29.2 APPLICABLE LAW
The application law for the purpose of interpretation of this lease,
or the enforcement of any rights or obligations hereunder, shall be
the laws of the United States Federal Government, Oregon State, County
of Lane, and the City of Xxxxxx.
31.1 ADDITIONAL PROVISIONS
The following covenants and agreements shall in no way diminish or
limit the foregoing provisions of this Section. No use may be made of,
on or from the Premises relating to the handling, storage, disposal,
transportation, or discharge of Hazardous Substances (as defined
below). All of such use which does occur shall be in strict
conformance with all Laws. Tenant shall give prior written notice to
Landlord of any use, whether incidental or otherwise, of Hazardous
Substances on the Premises, or of any notice of any violation of any
Law with respect to such use. Landlord and any ground lessor or master
lessor of the Premises and/or the Building shall have the right to
request and to receive information with respect to use of Hazardous
Substances on the Premises in writing.
In addition to the indemnity obligations contained elsewhere herein,
Tenant shall indemnify, defend and hold harmless Landlord, the other
Protected Parties, the Premises, the Building, and the beneficiary
under a trust deed, or a mortgagee, holding a security interest in the
Building, from and against all claims, losses, damages, costs,
response costs and expenses, liabilities, and other expenses caused
by, arising out of, or in connection with, the generation, release,
handling, storage, discharge, transportation, deposit or disposal in,
on, under or about the Premises by Tenant or any of Tenant's Agents of
the following (collectively referred to as "Hazardous Substances"):
hazardous materials, hazardous substances, toxic wastes, toxic
substances, pollutants, petroleum products, underground tanks, oils,
pollution, asbestos, PCB's, materials, or contaminants, as those terms
are commonly used or as defined by federal, state, and/or local law or
regulation related to protection of health or the environment,
including but not limited to, the Resource Conservation and Recovery
Act (RCRA) (42 U.S.C. ss. 6901 et seq.); the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) (42
U.S.C. ss. 9601, et seq.); the Toxic Substances Control Act (15 U.S.C.
ss. 2601, et seq.); the Clean Water Act (33 U.S.C. ss. 1251, et seq.);
the Clean Air Act (42 U.S.C. ss. 7401 et seq.); and ORS Chapters 453,
465 and 466 as any of the same may be amended from time to time,
and/or by any rules and regulations promulgated thereunder. Such
damages, costs, liabilities, and expenses shall include such as are
claimed by any regulating and/or administering agency, any ground
lessor or master lessor of the Building, the
Page 18
holder of any Mortgage or Deed of Trust on the Building, and/or any
successor of the Landlord named herein. This indemnity shall include
(a) claims of third parties, including governmental agencies, for
damages, fines, penalties, response costs, monitoring costs,
injunctive or other relief; (b) the costs, expenses or losses
resulting from any injunctive relief, including preliminary or
temporary injunctive relief; (c) the expenses, including fees of
attorneys and experts, of reporting the existence of Hazardous
Substances to an agency of the State of Oregon or of the United States
as required by applicable laws and regulations; (d) any and all
expenses or obligations, including attorney's and paralegal fees,
incurred at, before and after any trial or appeal therefrom or review
thereof, or an administrative proceeding or appeal therefrom or review
thereof, whether or not taxable as costs, including, without
limitation, attorney's fees, paralegal fees, witness fees (expert and
otherwise), deposition costs, photocopying and telephone charges and
other expenses related to the foregoing. All of which shall be paid by
Tenant to Landlord when such expenses are incurred. This indemnity
shall survive the expiration or earlier termination of the term of the
Lease of the termination of Tenant's right of possession and be fully
enforceable thereafter.
32.1 INFORMATION
Tenant shall provide Landlord with any and all information regarding
Hazardous Substances in the Premises, including contemporaneous copies
of all filings and reports to governmental entities, and any other
information requested by Landlord. In the event of any accident, spill
or other incident involving Hazardous Substances, Tenant shall
immediately report the same to Landlord and supply Landlord with all
information and reports with respect to the same. All information
described herein shall be provided to Landlord regardless of any claim
by Tenant that it is confidential or privileged.
33.1 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 and that this Lease is binding upon said corporation in
accordance with its terms.
Page 19
AGREED AND ACCEPTED: DATE: 10/27/97
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Landlord: WCP, LLC Tenant: Percon, Inc.
By: XXXXX XXXXXXXX, AIF By: XXXX XXXX
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Xxxx Xxxx
Its: SECRETARY Its: Chief Operating Officer
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EXHIBITS:
A. Premises
B. Building
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