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EXHIBIT 10.8
COMMERCIAL LEASE
THIS LEASE, made as of the _ day of January, 1997 by and between XXXXXX
XXXXXX and XXXX XXXXXX, ("Owners") hereinafter collectively referred to as
"Landlord" and HORIZON HIGH REACH, INCORPORATED, a Delaware Corporation having
its Principal Place of Business in California, hereinafter called "Tenant",
ARTICLE I - BASIC TERMS
1.01 Basic Terms: Premises accepted "as is" as of this date
A. Address of Landlord:
XXXXXX XXXXXX
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
With Copy to:
Xxxxx X. Xxxx, Atty.
00 Xxxx Xxxx Xxxx., X.X. Xxx 000
Xxxxx Xxxx, XX 00000
or such other address as may from time to time be designated by Landlord in
writing.
B. Address of Tenant:
HORIZON HIGH REACH, Incorporated
0000 X. Xxxx- Xxxxx #000
Xxxxxx, XX 00000
or such other address as may from time to time be designated by Tenant in
writing.
C. Premises: (Stipulated to be exactly) 9,000 square feet of space in
the Building, plus use of the yard area, per "site plan" attached hereto as
Exhibit "A".
D. Building: The Building in which the Premises is located, the common
address of which is 000-00 X. Xxxxxxxx, Xxxxxxxx, XX 00000, together with the
land, and any parking areas, walkways, landscaped areas and other improvements
appurtenant thereto per the aforesaid site plan. The legal description of the
parcel on which the Building is situated is (or may hereafter be) attached
hereto as Exhibit "B".
E. Personal Guarantor(s): NONE
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F. Term: The period of time commencing March 1, 1997 and expiring
February 28, 2002 (with one 5 year option thereafter as set forth in paragraph
21.04 below), unless sooner terminated as set forth herein.
G. Rent: All sums, moneys or payments required to be paid by Tenant to
Landlord pursuant to this Lease, including both "Base Rent" and all "Additional
Rent".
H. Base Rent: Assuming 9,000 square feet (per stipulation of parties),
the base rent herein shall be $312.750.00 for the 60 month Term hereof, payable
as follows:
- $29.250.00 (based on $6.50/sq. ft. per annum) payable in
advance in 6 equal monthly installments of $4.875.00 each,
plus all Additional Rent (as hereinafter defined) for the
period March 1, 1997 thru August 31, 1997.
- $283,500.00 (based on $7.00/sq. ft. per annum) payable in
advance in 54 equal monthly installments of $5.250.00 each,
plus all Additional Rent (as hereinafter defined) for the
period September 1, 1997 thru February 28, 2002.
I. Additional Rent (Real Estate Taxes): In addition to the base rent,
commencing with the 37th installment of the base rent as set forth above, (i.e.,
after 3 years) Tenant shall thereafter also pay 100% of any increase over the
amount of the 1996 base year of, as and for all Real Estate Taxes allocable to
the leased premises, as more fully set forth in paragraph 5.02 herein.
J. Security Deposit: $10.500.00 (2 months final base rent), payable
upon execution of Lease.
K. Permitted Uses: Sales, Service & Rental of Aerial Work Platforms.
L. Broker(s):
Xx. Xxxxx Xxxxxx
Re/Max East West, Realtors
000-0 Xxxx Xx. Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
M. Exhibits:
A. Site Plan of Premises
B. Legal Description of Premises
1.02 Effect of Reference to Basic Terms: Each reference in this Lease
to any of the Basic Terms contained in Section 1.01 shall be construed to
incorporate into such reference all of the definitions set forth in Section
1.01.
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ARTICLE II - GRANT AND TERM
2.01 In consideration of the rents, covenants, agreements and
conditions hereinafter provided to be paid, kept, performed and observed,
Landlord leases to Tenant and Tenant hereby hires from Landlord the Premises
described in Section 1.01(C).
2.02 Tenant shall have and hold the Premises for and during the Lease
Term described in Section 1.01(F), subject to the payment of the Rent and to the
full and timely performance by Tenant of the covenants and conditions
herein-after set forth.
2.03 In the event Tenant takes possession of the Premises prior to the
beginning of the Term hereof with Landlord's consent, all the provisions of this
Lease shall be in full force and effect upon Tenant's so taking possession.
ARTICLE III - RESERVATIONS BY LANDLORD
3.01 Landlord excepts and reserves the roof, exterior walls and Common
Areas of the Building as described in Article XV below, and further reserves the
right to place, install, maintain, carry through, repair and replace such
utility lines, pipes, wires, appliances, tunneling and the like in, over,
through and upon the Premises as may be reasonably necessary or advisable for
the servicing of the Premises or any other portions of the Building.
3.02 Notwithstanding any provision in this Lease to the contrary, it is
agreed that Landlord reserves the right, without invalidating this lease or
modifying any provision thereof, at any time, and from time to time, (i) to make
alterations, changes and additions to the Building, (ii) to add additional areas
to the Building and/or to exclude areas therefrom, and (iii) to construct
additional buildings and other improvements. It is further understood that the
existing layout of the Building, and any appurtenant walks, roadways, parking
areas, entrances, exits, and other improvements shall not be deemed to be a
warranty, representation or agreement on the part of the Landlord that same will
remain exactly as presently built.
ARTICLE IV - USE
4.01 The Premises hereby leased shall be used by and/or at the
sufferance of Tenant only for the purposes set forth in Section 1.01(K) above
and for no other purposes. Tenant shall, at Tenant's expense, promptly comply
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 will
tend to unreasonably disturb other tenants in or (in the event that Tenant is
occupying the entire Building) in the immediate vicinity of the Building and
shall keep its mechanical apparatus free of noise and vibration which may be
transmitted beyond the confines of the Premises. Tenant, its employees and all
persons visiting or doing business with the Tenant in the Premises shall be
bound by and shall observe such reasonable rules and regulations made
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hereafter by Landlord relating to the Premises of which notice in writing shall
be given to the Tenant, and all such rules and regulations shall be deemed to be
incorporated into and form a part of this Lease.
4.02 Tenant covenants throughout the Lease Term, at Tenant's sole cost
and expense, promptly to comply with all laws and ordinances and the orders,
rules and regulations and requirements of all federal, state and municipal
governments and appropriate departments, commissions, boards, and officers
thereof, and the orders, rules and regulations of the Board of Fire Underwriters
where the Premises are situated, or any other body now or hereafter constituted
exercising similar functions, foreseen or unforeseen, ordinary as well as
extraordinary, and whether or not the same require structural repairs or
alterations, which may be applicable to the Premises, or the use or manner of
use of the Premises. Tenant will likewise observe and comply with the
requirements of all policies of public liability, fire and all other policies of
insurance at any time in force with respect to the buildings and improvements on
the Premises and the equipment thereof.
ARTICLE V - RENT
5.01 Base Rent: Tenant covenants to pay without notice, deduction,
set-off or abatement to Landlord the Base Rent specified in Section 1.01(H) in
lawful money of the United States in equal consecutive monthly installments in
advance on the first day of each month during the Lease Term. Rent for any
partial month shall be prorated on a per diem basis. Rent shall be payable to
Landlord at Landlord's address shown at Section 1.01(A) above or such other
place as Landlord may designate from time to time in writing. Tenant shall pay
the first full month's Base Rent upon execution of this Lease.
5.02 Real Estate Taxes: Commencing with the 37th month of this Lease,
and during the remaining term of the Lease or any extensions or holding over,
Tenant shall pay to Landlord, as Additional Rent, 100% of the Real Estate Taxes
levied against the Building in excess of the Real Estate Taxes levied against
the Building for the year 1996 (the base year).
"Real Estate Taxes" shall mean: (a) all ad valorem Real Estate Taxes on
the Project (adjusted after protest or litigation, if any) for any part of the
term of this Lease, exclusive of penalties, (b) any taxes which shall be levied
in lieu of any such ad valorem real estate taxes, (c) any special assessments
for benefits on or to the Building paid in annual installments by Landlord, (d)
occupational taxes or excise taxes levied on rentals derived from the operation
of the Building or the privilege of leasing property, and (e) the expense of
protesting, negotiating or contesting the amount or validity of any such taxes,
charges or assessments, such expense to be applicable to the period of the item
contested, protested or negotiation.
If the term of the Lease shall end during a tax calendar year (tax
calendar year shall mean each annual period for which ad valorem real estate
taxes are assessed and levied) of which part only is included in the Term
hereof, the amount of such Additional Rent shall be prorated on a per diem basis
and shall be paid on or before the last day of the Term. If the Term ends in any
tax calendar year before the amount to be payable by Tenant has been
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determined under the provisions of this Section, an amount payable for the
portion of the Lease Term during the tax calendar year shall be reasonably
estimated by the Landlord and the estimated amount shall be promptly paid by
Tenant. As soon as the amount properly payable by the Tenant for the partial
period has finally been determined, the amount shall be adjusted between
Landlord and Tenant.
5.03 Heating Ventilation and Air Conditioning Maintenance: Landlord
shall cause the HVAC system to be delivered to Tenant in good operating
condition as of the beginning of the date and time of the initial occupancy by
Tenant. Thereafter, Tenant shall be responsible for all minor repairs (defined
as any repair up to $500.00) relative to the HVAC system. Landlord shall pay any
repairs or replacement costs for items in excess of $500.00 per item (such as
compressors).
5.04 Service Charge: Tenant's failure to make any monetary payment
required of Tenant hereunder within ten (10) days of the due date therefor shall
result in the imposition of a service charge for such late payment in the amount
of ten percent (10%) of the amount due. In addition, any sum not paid within
thirty (30) days of the due date therefor shall bear interest at the rate of
eighteen percent (18%) per annum (or such lesser percentage as may be the
maximum amount permitted by law) from the date due until paid.
ARTICLE VI - UTILITIES AND SERVICES
6.01 Tenant shall contract in its own name and timely pay for all
charges for electricity, gas, water, fuel, sewer charges, telephone, trash
hauling, and any other services or utilities used in, servicing or assessed
against the Premises, unless otherwise herein expressly provided.
ARTICLE VII - QUIET ENJOYMENT
7.01 Landlord covenants that Tenant, on paying the Rents herein
provided and keeping, performing and observing the covenants, agreements and
conditions herein required of Tenant, shall peaceably and quietly hold and enjoy
the Premises for the term aforesaid, subject, however, to the terms of this
Lease.
ARTICLE VIII - ASSIGNMENT AND SUBLETTING
8.01 Tenant shall not assign or hypothecate this Lease nor sublet or
otherwise transfer its interest in all or any part of the Premises without the
prior written consent of Landlord. If Tenant wishes to assign this Lease or
sublet all or any part of the Premises it shall give notice in writing (by
certified mail or by personal delivery) of such intention to Landlord,
furnishing Landlord with a copy of the proposed assignment or sublease document
and full information as to the identity and financial status of the proposed
assignee or subtenant. Thereupon, Landlord shall have, within ten (10) days of
receipt of such notice, the right to approve or
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reject such assignment or subletting for reasonable cause by written notice to
Tenant. If no such response is given, Landlord shall be deemed to have elected
to approve the assignment or subletting. Notwithstanding any assignment or
sublease, Tenant shall remain liable hereunder and shall not be released without
the express written agreement of Landlord to such release.
ARTICLE IX - DAMAGE OR DESTRUCTION
9.01 If the Premises or the Building or any part thereof is damaged by
fire or other casualty, cause or condition whatsoever as to be substantially
untenantable and the Landlord shall determine not to restore same, Landlord may,
by written notice to the tenant given within ten (10) days after such damage,
terminate this Lease as of the date of the damage. If this Lease is not
terminated as above provided and if the Premises are made partially or wholly
untenantable as aforesaid, Landlord, at its expense shall restore the same with
reasonable promptness to the condition in which Landlord furnished the Premises
to Tenant at the commencement of the term of this Lease but only as to those
items that were provided at Landlord's expense without any reimbursement by
Tenant. Landlord shall be under no obligation to restore any alterations,
improvements or additions to the Premises made by Tenant or paid for by Tenant,
including, but not limited to, any of the initial tenant finish done or paid for
by Tenant or any subsequent changes, alterations or additions made by Tenant.
9.02 If, as a result of fire or other casualty, cause or condition
whatsoever the Premises are made partially or wholly untenantable and, if
Landlord has not given the ten (10) day notice above provided for and falls
within sixty (60) days after such damage occurs to eliminate substantial
interference with Tenant's use of the Premises or substantially to restore same,
Tenant may terminate this Lease as of the end of said sixty (60) days by notice
to Landlord given not later than five (5) days after expiration of said sixty
(60) day period, if the Premises are rendered totally untenantable but this
Lease is not terminated, all rent shall xxxxx from the date of the fire or other
relevant cause or condition until the Premises are ready for occupancy and
reasonably accessible to Tenant. If a portion of the Premises is untenantable,
rent shall be prorated on a per diem basis and apportioned in accordance with
the portion of the Premises which is usable by the Tenant until the damaged part
is ready for the Tenant's occupancy. In all cases, due allowance shall be made
for reasonable delay caused by adjustment of insurance loss, strikes, labor
difficulties or any cause beyond Landlord's reasonable control. For the purposes
of this Lease, the Premises shall be considered tenantable so long as and to the
extent that the Premises are occupied. In any event, Tenant shall be responsible
for the removal, of restoration, when applicable, of all its damaged property
and debris from the Premises, upon request by Landlord or reimburse Landlord for
the cost of removal.
ARTICLE X - LANDLORD'S RIGHTS
10.01 Landlord reserves the following rights:
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(A) To exhibit the Premises to others and to display "For
Lease" signs on the Premises during the last six months of the term or
any extension thereof;
(B) To remove abandoned or unlicensed vehicles and vehicles
that are unreasonably interfering with the use of the parking lot by
others and to charge the responsible tenant for the expense of removing
said vehicles;
(C) To take any and all measures, including making inspection,
repairs, alterations, additions and improvements to the Premises or to
the Building as may be necessary or desirable for the safety,
protection or preservation of the Premises or the Building or
Landlord's interests, or as may be necessary or desirable in the
operation thereof.
Landlord may enter upon the Premises at any reasonable time for the purpose of
exercising any or all of the foregoing rights hereby reserved without being
deemed guilty of an eviction or disturbance of Tenant's use or possession and
without being liable in any manner to Tenant.
ARTICLE XI - HOLDING OVER
11.01 Tenant shall pay to Landlord the Base Rent and Additional Rent
computed on a per month basis for each month or part thereof (without reduction
for any such partial month) Tenant retains possession of the Premises or any
part thereof after the expiration of the Term, by lapse of time or otherwise, at
double the amount such rents then required by the terms hereof for the last
monthly period prior to the date of such expiration (including both Base Rent
and Additional Rent); and also pay all damages, direct or indirect, sustained by
Landlord by reason of such retention by Tenant. Acceptance by Landlord of any
rent or other payment from Tenant after such expiration shall not constitute a
renewal or extension nor waive Landlord's right of re-entry or any other right
of Landlord.
ARTICLE XII - SIGNS AND ADVERTISEMENTS
12.01 All signage erected by tenant shall be in conformity with local
building codes.
ARTICLE XIII - EMINENT DOMAIN
13.01 If the Premises or such substantial part thereof as reasonably
renders the remainder unfit for the intended uses shall be taken by any
competent authority under the power of eminent domain or be acquired for any
public or quasi-public use or purpose, the Term of this Lease shall cease and
terminate upon the date when the possession of said Premises or the part thereof
so taken shall be required for such use or purpose and without apportionment of
the award and Tenant shall have no claim against Landlord for the value of
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any unexpired Term of this Lease. If any condemnation proceeding shall be
instituted in which it is sought to take any part of the Building or change the
grade of any street or alley adjacent to the Building and such taking or change
of grade makes it necessary or desirable to remodel the Building to conform to
the changed grade, Landlord shall have the right to terminate this Lease after
having give written notice of termination to Tenant not less than ninety (90)
days prior to the date of termination designated in the notice. In either of
said events, rent at the then current rate shall be apportioned as of the date
of the termination. No money or other consideration shall be payable by the
Landlord to the Tenant for the right of termination and the Tenant shall have no
right to share in the condemnation award or in any judgment for damages caused
by the taking or the change of grade. Nothing in this paragraph shall preclude
an award being made to Tenant for loss of business or depreciation to and cost
of removal of equipment or fixtures.
ARTICLE XIV - LANDLORD'S INABILITY TO PERFORM
14.01 If by reason of inability to obtain and utilize labor, materials
or supplies; circumstances directly or indirectly the result of a state of war
or national or local emergency; any laws, rules, orders, regulations or
requirements of any governmental authority now or hereafter in force; strikes or
riots; accident in, damage to or the making or repairs, replacements, or
improvements to the Premises or any of the equipment thereof; or by reason of
any other cause beyond the reasonable control of Landlord, Landlord shall be
unable to perform or shall be delayed in the performance of any covenant to
supply any service, such nonperformance or delay in performance shall not render
Landlord liable in any respect for damages to either person or property,
constitute a total or partial eviction, constructive or other-wise, work an
abatement of rent or relieve Tenant from the fulfillment of any covenant or
agreement contained in this Lease.
ARTICLE XV - COMMON AREAS
15.01 The term "Common Areas" means all the areas and facilities of the
Building not intended for renting and, instead, designed for the common use and
benefit of Landlord and all or substantially all of the Tenants, their
employees, agents, customers and invitees. The Common Areas include, but not by
way of limitation, parking lots, rail spurs, truck courts, landscaped and vacant
areas, driveways, walks and curbs with facilities appurtenant to each as such
areas may exist from time to time.
ARTICLE XVI - ACCEPTANCE OF PREMISES, MAINTENANCE AND CARE
16.01 Completion and Acceptance: Tenant acknowledges that it will
examine the Premises before taking possession hereunder. Unless Tenant furnishes
Landlord with a notice in writing specifying any defect in the construction of
the Premises within ten (10) days after taking possession, such taking of
possession shall be conclusive evidence as against Tenant that at the time
thereof the Premises were in good order and satisfactory condition.
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16.02 Maintenance and Repair by Tenant: Tenant shall be responsible for
all maintenance, repair and replacement to the Premises of whatsoever kind or
nature that is not hereinafter set forth specifically as the obligation of
Landlord. Tenant shall take good care of the Premises and fixtures, and keep
them in good repair and free from filth, overloading, danger of fire or any pest
or nuisance, and repair and/or replacement any damage or breakage done by Tenant
or Tenant's agents, employees or invitees, including damage done to the Building
by Tenant's equipment or installations. Tenant shall be responsible for the
repair and replacement of all glass and plate glass on the Premises. Tenant
shall furnish and pay for the upkeep, maintenance, repair, replacement and
periodic servicing of the heating, ventilation and air conditioning system
servicing the Premises. At the end of the term of this Lease or any renewal
hereof, Tenant shall quit and surrender the Premises broom clean in as good
condition as when received by Tenant, normal wear and tear excepted. In the
event Tenant fails to maintain the Premises as provided for herein Landlord
shall have the right, but not the obligation, to perform such maintenance,
repair and replacement as is required of Tenant in which event Tenant shall
promptly reimburse Landlord for its costs in providing such maintenance or
repairs together with a ten percent (10%) charge for Landlord's overhead. There
shall be no overhead charged in connection with the servicing of the heating,
air conditioning and ventilation equipment if Landlord has elected to provide
such service under this paragraph.
16.03 Maintenance and Repair by Landlord: During the term of this
Lease, Landlord shall keep and maintain the roof, exterior walls (excluding
glass or plate glass), gutters and downspouts of the Building in good condition
and repair at no further cost to Tenant. Landlord shall be under no obligation
and shall not be liable for any failure to make repairs that are Landlord's
responsibility herein until and unless Tenant notifies Landlord in writing of
the necessity therefor, in which event Landlord shall have a reasonable time
thereafter to make such repairs. Landlord reserves the right to the exclusive
use of the roof and exterior walls of the Building which Landlord is so
obligated to maintain and repair. If any portion of the Premises which Landlord
is obligated to maintain or repair is damaged by the negligence of Tenant, its
agents, employees or invitees, then repairs necessitated by such damage shall be
paid for by Tenant.
ARTICLE XVII - ALTERATIONS AND ADDITIONS, MECHANICS' LIENS
17.01 Alterations and Additions: Tenant shall not make any alterations,
improvements, or additions to the Premises without the prior written consent and
approval of plans therefor by Landlord. Alterations, improvements or additions
so made by either of the parties upon the Premises, except moveable furniture
and equipment placed in the Premises at the expense of Tenant, shall be and
become the property of Landlord and shall remain upon and be surrendered with
the Premises as a part thereof at the termination of this Lease, without
disturbance, molestation, injury or damage, unless Landlord elects to require
Tenant to remove such alterations or improvements from the Premises. In the
event damage to the Premises or the Building shall be caused by moving said
furniture and equipment in or out of the Premises, said damage shall be promptly
repaired at the cost of Tenant.
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17.02 Mechanic's Liens: Tenant shall not cause nor permit any
mechanic's liens or other liens to be placed upon the Premises or the Building
and in case of the filing of any such lien or claim therefor, Tenant shall
promptly discharge same; provided, however, that Tenant shall have the right to
contest the validity or amount of any such lien upon its prior posting of
security with Landlord, which security, in Landlord's sole reasonable judgment,
must be adequate to pay and discharge any such lien in full plus Landlord's
reasonable estimate of its legal fees. Tenant agrees to pay all legal fees and
other costs incurred by Landlord because of any mechanic's or other liens
attributable to Tenant being placed upon the Premises or the Building.
ARTICLE XVIII - INSURANCE
18.01 Public Liability, Property Damage Insurance: Tenant covenants and
agrees to maintain on the Premises at all times during the term of this Lease,
or any renewal thereof, a policy or policies of comprehensive public liability
and property damage insurance with not less than $1,000,000.00 combined single
limit for both bodily injury and property damage which policy or policies shall
name Owner, Xxxxxx Xxxxxx and Xxxx Xxxxxx, and their Property Manager all as
additional insured.
18.02 Fire and Extended Coverage Insurance: Landlord shall, throughout
the term of this Lease, or any extension thereof, maintain fire and extended
coverage insurance on the property owned by Landlord located in and about the
Premises in such amounts and with such deductibles as Landlord shall determine.
Landlord shall not be obligated in any way or manner to insure any property of
Tenant or any property that may be in the Premises but not owned by Landlord.
18.03 Indemnification of Landlord: Tenant indemnifies and shall hold
Landlord, Xxxxxx Xxxxxx and Xxxx Xxxxxx, and their respective affiliates,
partners, representatives, directors, trustees, officers, employees, lenders,
successors and assigns (collectively, "the Affiliates") and its property manager
harmless from and defend Landlord, Xxxxxx Xxxxxx and Xxxx Xxxxxx, and the
Affiliates and its property manager against any and all claims or liabilities
for any injury or death to any person or damage to any property whatsoever.
A. Either (i) occurring in, on, or about the Premises, or (ii)
occurring in, on, or about any facilities including, without
limitation, passageways or hallways, the use of which Tenant may have
in conjunction with other tenants of the Building, when such injury,
death or damage shall be caused in part or in whole by the act, neglect
or fault of, or omission of any duty with respect to the same by
Tenant, its agents, employees, contractors, invitees, licensees,
tenants, or assignees;
B. Arising from any work or thing whatsoever done by or
benefiting the Tenant in or about the Premises or from transactions of
the Tenant concerning the Premises;
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C. Arising from any breach or default on the part of the
Tenant in the performance of any covenant or agreement on the part of
the Tenant to be performed pursuant to the terms of this Lease; or
D. Otherwise arising from any act or neglect of the Tenant, or
any of its agents, employees, contractors, invitees, licensees, tenants
or assignees; and
E. From and against all costs, expenses, counsel fees, and
court costs incurred or assessed in connection with any or all of the
foregoing.
Furthermore, in case any action or proceeding be brought against Landlord,
Xxxxxx Xxxxxx and Xxxx Xxxxxx, or the Affiliates and/or its property manager by
reason of any claims or liability, Tenant agrees to cause such action or
proceeding to be defended at Tenant's sole expense by counsel reasonably
satisfactory to Landlord. The provisions of this Lease with respect to any
claims or liability occurring or caused prior to any expiration or termination
of this Lease shall survive expiration or termination
ARTICLE XIX - DEFAULT AND REMEDIES
19.01 In the event:
A. Tenant shall at any time fail to pay any item of Rent
within ten (10) days after written notice thereof has been mailed by
Landlord to Tenant after date due; or
B. Tenant shall fail to keep, perform or observe any other
covenant, agreement, condition or undertaking hereunder and shall fail
to remedy such default within ten (10) days after written notice
thereof has been mailed by Landlord to Tenant; or if such default is
one that will take longer than ten (10) days to remedy, Tenant fails to
commence curing such default within ten (10) days and/or fails
diligently to pursue such cure to completion; or
C. The Premises shall be vacated by Tenant for any period for
which Tenant has not paid its Rent;
Landlord shall have the right, without further notice to or demand, to re-enter
and take exclusive possession of the Premises, with legal process, and to refuse
to allow Tenant to enter the same or have possession thereof; to change the
locks on the doors to the Premises; take possession of any furniture or other
property in or upon the Premises (Tenant hereby waiving the benefit of all
exemptions by law), sell the same at public or private sale and apply the
proceeds thereof to the costs of sale, payment of damages and payment of the
rent due under this Lease; and
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(1) As agent of Tenant to relet the Premises for the balance
of the Lease Term or for a shorter or longer term and receive the rents
therefor, applying them first to the payment of damages suffered to the
Premises and rents due and to become due under this Lease Tenant
remaining liable for and hereby agreeing to pay Landlord any
deficiency; or
(2) To cancel and terminate the remaining term of this Lease,
re-enter and take possession of the Premises free of this Lease and
thereafter this Lease shall be null and void and the rents in such case
shall be apportioned and paid on and up to the date of such entry.
Thereafter both parties shall be released and relieved from any of any
and all obligations thereafter to accrue hereunder. Tenant shall be
liable for all loss and damage resulting from such breach or default;
or
(3) To treat such default as an anticipatory breach of this
Lease and, as liquidated damages for such default, be entitled to the
difference, if any, between the sum which, at the time of such
termination for anticipatory breach represents the then present worth
(computed at seven percent per year) of the excess aggregate rents and
additional rents payable hereunder that would have accrued over the
balance of the Lease Term including extensions, had such term not been
prematurely terminated, over the aggregate market rental value of the
Premises over the term (including extensions) that the Lease would have
run had it not been prematurely terminated.
19.02 Landlord's Right to Cure: Landlord may, but shall not be
obligated to, cure any default by Tenant (specifically including, but not by way
of limitation, Tenant's failure to obtain insurance, make repairs, or satisfy
lien claims); and whenever Landlord so elects, all costs and expenses paid by
Landlord in curing such default, including without limitation reasonable
attorneys' fees, shall be so much Additional Rent due on the next rent date
after such payment, together with interest (except in the case of said
attorneys' fees) at the highest rate then payable by Tenant in the state in
which the Leased Premises are located or in the absence of such a maximum rate
at the rate of eighteen percent (18%) per annum, from the date of the advance to
the date of repayment by Tenant to Landlord.
19.03 Remedies Cumulative: All rights and remedies provided in this
Lease for Landlord's protection shall be cumulative and in addition to any other
rights and remedies provided by law. Landlord shall be entitled to recover from
Tenant its reasonable attorneys' fees incurred in enforcing its rights
hereunder.
19.04 No Waiver: A waiver by Landlord of a breach or default by Tenant
under the terms and conditions of this Lease shall not be construed to be a
waiver of any subsequent breach or default nor of any other term or condition of
this Lease, and the failure of Landlord to assert any breach or to declare a
default by Tenant shall not be construed to constitute a waiver thereof so long
as such breach or default continues unremedied.
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19.05 No Reinstatement: No receipt of money by Landlord from Tenant
after the expiration or termination of this lease or after the service of any
notice or after the commencement of any suit, or after final judgment for
possession of the Premises shall reinstate continue or extend the Term of this
Lease or affect any such notice, demand or suit.
19.06 Default Under Other Leases: A default under this Lease shall, at
Landlord's option, be deemed a default under any other leases between Landlord
and Tenant for space in the Building. Likewise, a default under any other such
lease between Landlord and Tenant shall, at Landlord's option, be deemed a
default under this Lease.
ARTICLE XX - SECURITY DEPOSIT
20.01 Tenant herewith deposits with Landlord the sum set forth in
Section 1.01(I) as security for the performance by Tenant of every covenant and
condition of this Lease. Said deposit may be commingled with other funds of
Landlord and shall bear no interest. If Tenant shall default with respect to any
covenant or condition of this Lease, Landlord may apply the whole or any part of
such security deposit to the payment of any sum in default or any sum which
Landlord may be required to spend by reason of Tenant's default. This includes,
but is not limited to, applying the security deposit first to any restoration
and/or cleanup costs necessary over and above normal wear and tear of the
vacated space. It is understood that the security deposit is not to be
considered as the last month's rent under the Lease. Should Tenant comply with
all of the covenants and conditions of this Lease, the security deposit or any
balance thereof shall be returned to Tenant at the expiration of the Term
hereof.
ARTICLE XXI - MISCELLANEOUS
21.01 Persons Bound: The agreements, covenants and conditions of this
Lease shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and assigns of each of the parties hereto, except
that no assignment, encumbrance or subletting by Lessee, unless permitted by the
provisions of this Lease, shall vest any right in the assignee, encumbrances or
subleases of Tenant, if there be more than one Tenant herein named, the
provisions of the Lease shall be applicable to and binding upon such Tenant
jointly and severally, as well as their heirs, legal representatives, successors
and assigns.
21.02 Partial Invalidity: If any term, covenant, condition or provision
of this Lease or the application thereof to any person or circumstance shall, to
any extent be invalid, unenforceable or violate a party's legal rights, then
such term, covenant, condition or provision shall be deemed to be null and void
and unenforceable, however, all other provisions of this Lease, or the
application of such term or provision to persons or circumstances other than
those to which are hold invalid, unenforceable or violative of legal rights,
shall not be affected thereby, and each and every other term, condition,
covenant and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
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21.03 Captions: The headings and captions used throughout this Lease
are for convenience and reference only and shall in no way be held to explain,
modify, amplify, or aid in the interpretation, construction or meaning of any
provisions in this Lease. The words "Landlord" and "Tenant" wherever used in
this Lease shall be construed to mean plural where necessary, and the necessary
grammatical changes required to make the provisions hereof apply either to
corporation, partnerships, or individuals, men or women, shall in all cases be
assured as though in each case fully expressed.
21.04 One Option to Renew: Tenant shall have one (1) option to renew
for a five (5) year term at a base rent equal to the total base rent payable
under this present lease multiplied by a factor determined by using the C.P.I.
as of March 1, 2002 as its numerator and the C.P.I. as of March 1, 1997 as its
denominator.
21.05 Brokers: Tenant represents that it has dealt directly with and
only with the broker or brokers set forth at Section 1.01(P) above, and that
Tenant knows of no other broker who negotiated this Lease or is entitled to any
commission in connection herewith. Tenant agrees to indemnify, defend and hold
harmless Landlord from and against any commissions or claims by any other broker
or brokers pertaining to Tenant's having entered into this Lease.
21.06 Applicable Law: This Lease, its interpretation and enforcement
shall be governed by the laws of the state in which the Premises are located.
21.07 Tenant's Compliance with Laws and Ordinances: Tenant covenants
throughout the Lease Term, at Tenant's sole cost and expense, promptly to comply
with all laws and ordinances and the orders, rules and regulations and
requirements of all federal, state and municipal governments and appropriate
departments, commissions, boards, and officers thereof, and the orders, rules
and regulations of the Board of Fire Underwriters where the Premises are
situated, or any other body now or hereafter constituted exercising similar
functions, foreseen or unforeseen, ordinary as well as extraordinary, and
whether or not the same require structural repairs or alterations, which may be
applicable to the Premises, or the use or manner of use of the Premises. Tenant
will likewise observe and comply with the requirements of all policies of public
liability, fire and all other policies of insurance at any time in force with
respect to the buildings and improvements on the Premises and the equipment
thereof.
21.08 Waiver of Jury: Landlord and Tenant agree that, to the extent
permitted by law, each shall and hereby does waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease.
21.09 Allocation of Rent: Landlord and Tenant agree that no portion of
the Base Rent paid by Tenant during the portion of the term of this Lease
occurring after the expiration of any period during which such rent was abated
shall be allocated by Landlord or Tenant to such rent abatement period, nor is
such rent intended by the parties to be allocable to any abatement period.
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ARTICLE XXII - HAZARDOUS SUBSTANCES AND MATERIALS
22.01 A. During the term of this Lease, Tenant shall not suffer, allow,
permit or cause:
1. The installation of any underground storage tanks for the
purpose of holding petroleum products or hazardous substances either on
the Premises or at any other location in the Building or the Building
site.
2. The accumulation of tires, spent batteries, debris or other
solid wastes either on the Premises or any other part of the Building
or the Building site except rubbish placed in designated containers
scheduled for normal, scheduled disposal in accordance with all
applicable law;
3. The generation, accumulation, storage, possession, release
or threat of release of "hazardous substances", "pollutants",
"hazardous waste", or "toxic materials", as those terms are used in the
Comprehensive Environmental Response Compensation and Liability Act of
1980 ("CERCLA"), 42 U.S.C. 9601, et seq., as amended, the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. 6901, et. seq., as
amended, the Toxic Substance Control Act (or any regulations
promulgated under the foregoing) or any other present or future
federal, state or local law, ordinance, rule or regulation, including
extremely flammable substances, explosives, radioactive materials and
petroleum/petroleum products (collectively, "Hazardous Substances";
provided, however, the foregoing prohibition shall not be applicable to
(i) Hazardous Substances which are present at the leased premises prior
to the date hereof, (ii) normal and reasonable amounts of cleaning and
pest control supplies reasonably necessary for maintenance of the
premises so long as such materials are properly, safely, and lawfully
stored and used by Tenant and the quantity of same does not equal or
exceed a "reportable quantity" as defined under 40 C.F.R. 302 and 305,
as amended, or (iii) de minimis amounts of leaked or spilled petroleum
products from the normal operation of motor vehicles; and
4. The use of the leased Premises for industrial,
manufacturing or landfill purposes, except as may be provided for
herein.
B. Tenant acknowledges that the use, maintenance or storage of
chlorofluorocarbons (including but not limited to freon and other so-called
CFC'S) may hereafter be prohibited or limited by law. In the event use,
maintenance or storage of chlorofluorocarbons is hereafter prohibited or
limited.
1. After the use or maintenance of chlorofluorocarbons is
prohibited or limited, Tenant shall not thereafter allow, cause, suffer
or permit any chlorofluorocarbons to be either placed, stored,
maintained, used or kept within the Premises or at any other part of
the Building or Building site which
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is within or subject to Tenant's right to control or use, except or in
compliance with all applicable laws, regulations, rules and ordinances;
2. Tenant shall forthwith contain or otherwise xxxxx (as
required by applicable law) all chlorofluorocarbons placed in the
Premises after the date of the Lease and Tenant shall pay its pro rate
share of the cost to contain or xxxxx chlorofluorocarbons placed or
present in the common areas at the time or after Tenant took possession
of the Premises;
3. Landlord shall have the right to xxxxx any
chlorofluorocarbons placed in the Premises prior to the date on which
Tenant first took possession of the Premises. Landlord shall have no
obligation to so xxxxx unless required by law. In conjunction
therewith, Landlord shall have no obligation to so xxxxx unless
required by law. In conjunction therewith, Landlord shall be entitled
to access the Premises for the purposes of performing any necessary
containment or abatement in accordance with applicable law.
Furthermore, Tenant shall not be entitled to terminate this Lease or to
receive any rent abatement or to hold Landlord liable for any
incidental or consequential damages (such as, but not limited to,
damages for business interruption) arising by reason of the fact that
any chlorofluorocarbons are present in the Premises at the date of this
Lease so long as Landlord performs its obligations under this
subparagraph within a reasonable time after the effective date of any
law which prohibits further use, storage or maintenance of
chlorofluorocarbons within the Premises; and
4. In addition to the foregoing, Tenant agrees that Tenant
shall, at the end of the Lease term or sooner termination thereof,
remove all chloro-fluorocarbons which have been placed in the Premises
during the Lease term (regardless of whether the use, storage or
maintenance of chlorofluorocarbons is prohibited with the Premises at
the end of the lease term) unless requested not to do so by Landlord.
C. Tenant shall notify Landlord immediately upon learning that any duty
of Tenant described in paragraph A of this Article has been violated, that there
has been a release, discharge or disposal of any Hazardous Substances on a part
of the Premises or the Building or Building site, that radon gas or urea
formaldehyde has been detected on or in the Premises, or that the Premises are
subject to any third party claim or action, or threat thereof, because of any
environmental condition in or originating from the Premises or arising in
connection with Tenant's operations at the Premises or at the Building or
Building site. Tenant shall promptly provide Landlord with copies of all
correspondence to or from third parties regarding such claims or actions or
regarding environmental conditions in or originating from Tenant's operations in
the Premises or at the Building or Building site.
D. In the event of a release, leaking, spilling or deposit
(collectively "Leak") of any Hazardous Substances on, in or from the Premises,
Tenant shall immediately cause complete remediation of such leak and restore the
Premises to the condition that existed prior to commencement of this Lease or
the date Tenant took possession of the Premises,
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whichever is earlier. Landlord shall have the right, but not the obligation, to
enter the Premises and remediate any environmental condition on the Premises to
comply with all laws, regulations and ordinances during which time Tenant shall
not be entitled to any abatement of rent.
E. Tenant shall indemnify and hold harmless Landlord (as well as
Landlord's officers, directors, shareholder, employees, partners, servants and
agents including the property manager) (the "Indemnified Parties") of and from
any and all liabilities (including strict liabilities), penalties, demands,
actions, costs and expenses (including without limitation legal fees),
remediation and response costs, remediation plan preparation costs and any
continuing monitoring or closure costs, incurred or suffered by the Indemnified
Parties, or asserted by a third party against the Indemnified Parties, directly
or indirectly arising due to the breach of Tenant's obligations set forth in
this Article. Such indemnification shall survive expiration or earlier
termination of this Lease.
F. At the expiration or sooner termination hereof, Tenant shall return
the Premises to Landlord in substantially the same condition as existed on the
date of commencement hereof or the date Tenant took possession of the Premises,
whichever is earlier, free of any leaked Hazardous Substances in, on or from the
leased Premises.
ARTICLE XXIII - ENTIRE AGREEMENT
23.01 This Lease contains the entire agreement between the parties and
no modification of this Lease shall be binding upon the parties unless evidenced
by an agreement in writing signed by the Landlord and the Tenant after the date
hereof. If there be more than one Tenant named herein, the provisions of this
Lease shall be applicable to and binding upon such tenants jointly and
severally.
ARTICLE XXIV - EXHIBITS
24.01 Reference is made to the Exhibits listed at Section 1.01(M)
above, which exhibits are attached hereto and Incorporated herein by reference.
ARTICLE XXV - HAZARDOUS MATERIALS
25.01 Hazardous Material: Tenant shall comply with all Laws
(hereinafter defined) relating to the storage, use and disposal of Hazardous
Materials (hereinafter defined). No Hazardous Materials shall be disposed of on
the Premises. For purposes of this Section, "Hazardous Materials" means and
includes any hazardous, toxic or dangerous waste, substance or material defined
as such in (or for purposes of the Comprehensive Environmental Response,
Compensation, and Liability Act, any so-called "Superfund" or "Superlien" law,
or any federal, state or local statute, law, ordinance, code, rule, regulation,
order or decree (collectively "Laws") regulating, relating to, or imposing
liability or standards of
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conduct concerning, any hazardous, toxic or dangerous waste, substance or
material, as now or at any time hereafter in effect.
To the extent Landlord or any prior Tenant or Owner did not contribute
to same, Tenant shall be solely responsible for and shall indemnify, defend and
hold Landlord and its subsidiaries, directors, officers, employees, servants and
agents (collectively "Agents") harmless from any and all claims, judgments,
losses, demands, causes of action, proceedings or hearings relating to the
storage, placement or use of Hazardous Materials (hereinafter collectively
referred to as "Claims") by Tenant, its Agents or invitees on or about the
Premises including, without limitation, Claims resulting from the contamination
of subterranean water beneath, adjoining or in the vicinity of the Premises.
Tenant shall reimburse Landlord for: (i) losses in or reductions to rental
income resulting from Tenant's use, storage and disposal of Hazardous Materials;
(ii) all costs of refitting or other alterations to the Leased Premises
necessitated by Tenant's use, storage, or disposal of Hazardous Materials
including, without limitation, alterations required to accommodate an alternate
use of the Premises; and (iii) any diminution in the fair market value of the
Premises caused by Tenant's use, storage or disposal of Hazardous Materials.
Tenant agrees to defend all such Claims on behalf of Landlord with counsel
acceptable to Landlord, and to pay all fees, costs, damages or expenses relating
to or arising out of any such Claim including attorney's fees and costs. Tenant
shall further agree to be solely responsible for and shall indemnify, defend and
hold Landlord and its Agents harmless from and against all Claims, including
reasonable attorney's fees and costs arising out of or in connection with any
removal, clean-up or restoration work which is required by any government agency
having jurisdiction and which arises from Tenant's storage, use or disposal of
Hazardous Materials on the Premises during its occupancy of the Premises.
Likewise, Landlord agrees to indemnify Tenant as to any losses to Tenant caused
by Landlord or any prior Tenant or Owner of subject premises. LANDLORD WARRANTS
THAT, TO HIS KNOWLEDGE, THE LEASED PREMISES ARE PRESENTLY FREE AND CLEAR OF ANY
AND ALL OF THE ABOVE MENTIONED MATERIALS.
From time to time during the Term of the Lease or any extension thereof
and not more than ninety (90) days after the expiration or earlier termination
of this Lease, including any extension thereof, Landlord may, in its sole
discretion conduct tests of the Premises to determine the presence of Hazardous
Materials. Results of said tests will be provided to Tenant at Tenant's request.
In the event such tests indicate the presence of Hazardous Materials due to the
activities of Tenant, and Tenant's confirming tests reach the same conclusion,
Tenant shall, in addition to its other obligations hereunder, reimburse Landlord
for the cost of such test or tests and shall immediately commence procedures to
remove such Hazardous Materials from the Premises. Tenant's reimbursement to
Landlord of its tests shall not constitute a final acceptance of the tests by
Tenant or a waiver by Tenant to contest the results of the tests.
Notwithstanding anything herein to the contrary, Tenant shall have no obligation
to clean up, to comply with any Law regarding, or to reimburse release,
indemnify, or defend Landlord with respect to any Hazardous Materials which
Tenant or its agents did not store, use, dispose of or transport in or on the
Premises. This Section shall survive the expiration or sooner termination of
this Lease.
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IN WITNESS WHEREOF, the parties have signed duplicate counterparts
hereof as of the date and year hereinabove set forth.
TENANT: LANDLORD:
Horizon High Reach Incorporated
by:
/s/ Xxxxxx Xxxxxx
---------------------------------- ----------------------------------
(Xxxxx Xxxxxxxx), Vice President (Xxxxxx Xxxxxx)
Attest:
/s/ Xxxx Xxxxxx
---------------------------------- ----------------------------------
Secretary (Xxxx Xxxxxx)
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