LEASE MODIFICATION
PARTIES:
LANDLORD: Xxxxx X. Xxxxxxx
TENANT: Advanced Power Technology, Inc.
PROPERTY: 405 S.W. Columbia, Bend, Oregon 97702
The parties agree to modify that certain lease dated August 27, 1985 and
modified September 15, 1995 as follows:
BASIC RENT: The base rent shall be $14,900.00 per month beginning
September 15, 1999 and continuing through September 14, 2001,
and the greater of $15,950.00 per month or previous base
($14,900) plus percent change in CPI from June 30, 1999 to
June 30, 2001 beginning September 15, 2001 and continuing
through September 14, 2003.
LEASE TERM: The term of the lease shall be from September 15, 1999
through September 14, 2003.
CAM CHARGES: The CAM charges will continue to be assessed as per the
original lease dated March 21, 1985.
TERMS: All other terms and conditions of the original lease dated
March 21, 1985, will remain in full force and effect except
for the remaining renewal options which are void and replaced
by the four year renewal option now being exercised.
The CPI index will be based on the Consumer Price Indexes, Pacific Cities and
U.S. City Average, All Items Indexes, West - B/C, see copy attached.
DISCLOSURE: Tenant acknowledges that C G Properties, agent for owners, is
licensed by the State of Oregon, as a real estate broker. Said agent is not
representing Tenant in any manner.
DISCLAIMER: This lease modification has been prepared and approved upon the
instruction of the Landlord. C G Properties claims no responsibility for the
legal consequences of the above lease modification and has only acted as the
xxxxxxxx to fill in the blanks as directed by the parties.
This modification is effective September 15, 1999. All other provisions of the
original lease shall remain in full force and effect.
LANDLORD: TENANT:
XXXXX X. XXXXXXX ADVANCED POWER TECHNOLOGY, INC.
BY: BY:
------------------------- -------------------------
Dated: Dated:
---------------------- ----------------------
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LEASE AGREEMENT
THIS LEASE is made this 21st day of March, 1985, between XXXXXXX NO. ONE, an
Oregon joint venture, hereinafter called "Landlord," and ADVANCED POWER
TECHNOLOGY, INC., hereinafter called "Tenant."
LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord, subject
to all of the terms and conditions hereinafter set forth, those certain premises
(hereinafter called the "Premises") shown in the drawings attached hereto as
Exhibit "A" and "A-l" and situated on that certain real property (the
"Property"), the legal description of which is set forth on Exhibit "A." The
Property shall be improved with landscaping, parking facilities and other
improvements. The structure located upon the Property in which the Premises is
located is referred to herein as the "Building," a site plan of which is
attached hereto as Exhibit "B."
BASIC LEASE PROVISIONS
A. Project Name: Columbia Business Center
Address: 000 XX Xxxxxxxx Xx. Xxxxxxxx Xx: 0
Xxxx, Xxxxxx 00000
B. Rentable Area: 18,250 square feet for Building
18,250 square feet for Premises
C. Pro-Rata Share of Operating Costs: 100%
D. Basic Annual Rental
Yrs. One through Four $137,970 per year
Yrs. Five through Eight $146,730 per year
Yrs. Nine and Ten $155,490 per year
Yrs. Eleven through Fifteen $166,440 per year
Yrs. Sixteen through Twenty $190,530 per year
Yrs. 21 through 25 $227,760 per year
E. Monthly Rental Installments
Yrs. One through Four $11,497.50 per month
Yrs. Five through Eight $12,227.50 per month
Yrs. Nine and Ten $12,957.50 per month
Yrs. Eleven through Fifteen $13,870.00 per month
Yrs. Sixteen through Twenty $15,877.50 per month
Yrs. 21 through 25 $18,980.00 per month
F. Estimated Total Operating Expenses for First Year
$26,280.00
$2,190.00/month ($.12 sq.ft. of area)
X. Xxxx: Ten (lO) years with three (3) five (5) year options
H. Target Commencement Date: September 15, 1985
I. Security Deposit/Prepaid Rent: $ 11 , 497.50
X. Address for Payment and Notices to Landlord:
Emkay Development Company
c/o Xxxxx X. Xxxxxxx
Xxxxxxxx & Burdell
0000 Xxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Address for Notices to Tenant:
Advanced Power Technology, Inc.
00 X.X. Colorado Avenue
Bend, Oregon 97701
K. Exhibits:
A = Legal Description
B = Building Site Plan
C = Use of Premises and Trade Name
D = CC&Rs
E = Work Letter
F = Rules and Regulations
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TABLE OF CONTENTS
ARTICLE 1 TERM...........................................................1
ARTICLE 2 RENT...........................................................1
ARTICLE 3 RENT ADJUSTMENT................................................2
ARTICLE 4 SECURITY DEPOSIT/PREPAID RENT..................................5
ARTICLE 5 UTILITIES AND SERVICES.........................................5
ARTICLE 6 USE OF PREMISES................................................5
ARTICLE 7 ACCEPTANCE OF PREMISES.........................................6
ARTICLE 8 ALTERATIONS AND EQUIPMENT......................................6
ARTICLE 9 LIENS..........................................................7
ARTICLE 10 TAX ON TENANT'S PROPERTY....................................7
ARTICLE 11 MAINTENANCE AND REPAIR......................................7
ARTICLE 12 ENTRY AND INSPECTION........................................8
ARTICLE 13 HOLD HARMLESS AND NON-LIABILITY.............................8
ARTICLE 14 WAIVER OF SUBROGATION.......................................9
ARTICLE 15 ASSIGNMENT AND SUBLETTING...................................9
ARTICLE 16 TRANSFER OF LANDLORD'S INTEREST............................10
ARTICLE 17 DAMAGE OR DESTRUCTION......................................11
ARTICLE 18 EMINENT DOMAIN.............................................12
ARTICLE 19 DEFAULTS AND REMEDIES......................................12
ARTICLE 20 SURRENDER OF PREMISES; REMOVAL OF PROPERTY.................15
ARTICLE 21 COSTS OF SUIT..............................................16
ARTICLE 22 WAIVER.....................................................16
ARTICLE 23 HOLDING OVER...............................................16
ARTICLE 24 SUBORDINATION..............................................17
ARTICLE 25 RULES AND REGULATIONS......................................17
ARTICLE 26 DEFINED TERMS..............................................17
ARTICLE 27 HEIRS AND ASSIGNS..........................................17
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ARTICLE 28 TIME OF ESSENCE............................................18
ARTICLE 29 SEPARABILITY...............................................18
ARTICLE 30 ENTIRE AGREEMENT...........................................18
ARTICLE 31 WORK LETTER................................................18
ARTICLE 32 RIGHT OF LANDLORD TO PERFORM...............................18
ARTICLE 33 INTEREST ON TENANT'S OBLIGATIONS...........................19
ARTICLE 34 NOTICES....................................................19
ARTICLE 35 QUIET ENJOYMENT............................................19
ARTICLE 36 ESTOPPEL CERTIFICATES......................................19
ARTICLE 37 ACCESS, CHANGES IN BUILDING FACILITIES, NAME...............20
ARTICLE 38 OPTION TO RENEW............................................20
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ADDITIONAL LEASE PROVISIONS
ARTICLE 1 TERM.
1.1 COMMENCEMENT DATE AND DURATION. The term of this Lease shall be as
shown in Item G of the Basic Lease Provisions and shall commence on the Target
Commencement Date as shown in Item H of the Basic Lease Provisions or such later
date as the Premises shall be tendered to Tenant ready for occupancy as set
forth in Section 1.2 below, or upon such earlier date as Tenant takes possession
or commences use of the Premises for any purpose other than construction. The
date of commencement as defined above, hereinafter called the "Commencement
Date," shall be confirmed in writing by the parties promptly upon such
commencement.
1.2 DELIVERY OF PREMISES. Landlord may tender the Premises to Tenant on
or after the Target Commencement Date upon not less than thirty (30) days prior
written notice stating that the Premises will be ready for occupancy on the date
specified in such notice. The Premises shall be deemed ready for occupancy upon
the expiration of thirty (30) days from the date such notice is given, and when
Landlord (a) has put in operation all building services essential for the use of
the Premises by Tenant, (b) has provided reasonable access to the Premises for
Tenant, its agents, employees, licensees and invitees so that the same may be
used without unnecessary interference, and (c) has substantially completed all
the work required to be done by Landlord or its obligation to complete such work
has been suspended as provided in the Work Letter executed by the parties
contemporaneously herewith.
1.3 DELAY IN DELIVERY OF PREMISES. Lessor fully anticipates that the
Premises will be ready for occupancy by the Target Commencement Date. However,
if Xxxxxx is unable to deliver possession of the leased Premises by such Target
Commencement Date, then neither the Lessor nor his agent shall be liable for any
damages caused to Lessee by reason of the delay nor shall this Lease become void
or voidable; but Lessee will not be liable for payment of rent until Lessor
delivers possession of the leased Premises to Lessee. If for any reason Lessor
fails to deliver possession of the Premises to Lessee on or before January 1,
1986, either party shall have a right to terminate and cancel this Lease by
giving written notice to that effect within thirty (30) days after such date.
Upon such notice, this Lease shall terminate, be null and void and without any
further force and effect, and there shall be no further rights or obligations of
either party against the other.
ARTICLE 2 RENT.
Tenant shall pay a basic annual rent (the "Basic Rent") for the
Premises in the amount shown in Item D of the Basic Lease Provisions for the
specified lease year, in equal monthly installments as shown in Item E of the
Basic Lease Provisions. All rent shall be paid on the first day of each month in
advance, except-that if the Commencement Date occurs on a day other than the
first day of a month, then the basic rent for the fraction of the month starting
with the Commencement Date shall be paid on said Commencement Date, prorated on
the basis of the actual number of days in said month. If the term of this Lease
ends on a day other than the last day of a month, then the basic rent for the
month during which such termination occurs shall be prorated on the basis of the
actual number of days in said month. As used in reference to
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Item D, "year" shall mean each succeeding period of twelve full calendar months
during the term following the Commencement Date, except that the first such
period shall include any partial month if the Commencement Date is not the first
day of a month in addition to the Basic Rent, Tenant shall pay additional rent
as and when hereinafter provided in this Lease. The Basic Rent and additional
rent are hereinafter sometimes referred to collectively as the "rent." The rent
shall be payable to Landlord, without deduction or offset, in lawful money of
the United States of America at the address for Landlord as shown in Item J of
the Basic Lease Provisions, or to such other person or at such other place as
Landlord may from time to time designate in writing.
ARTICLE 3 RENT ADJUSTMENT.
3.1 INCREASED EXPENSES. With respect to each calendar year during the
lease term, the Tenant shall pay in the installments provided below in Sections
3.3'and 3.4, as additional rent, in addition to the Basic Rent specified in
Article 2 above, an amount equal to the Tenant's Proportionate Share (as
hereinafter defined) of the amount of actual Total Operating Expenses (as
hereinafter defined). All such payments shall be made together with the Basic
Rent, shall be due without the necessity of further demand, and shall not be
subject to any claim of offset or deduction.
3.2 PROPORTIONATE SHARE. "Tenant's Proportionate Share" shall be
computed by dividing the average net rentable area leased in the Building by
Tenant during the calendar year in question by the total net rentable area of
the Building in Item B of the Basic Lease Provisions.
3.3 ESTIMATE OF EXPENSES. For the period from the Commencement Date
through December 31st first occurring thereafter, Tenant shall pay, in equal
monthly installments, the amount of Estimated Total Operating Expenses for the
First Year as shown in Item F of the Basic Lease Provisions. Landlord shall
provide to Tenant a written estimate of Total Operating Expenses at least thirty
(30) days prior to the start of each succeeding calendar year of the lease term
following the Commencement Date. With respect to each such succeeding calendar
year during the lease term, the Tenant shall pay to Landlord, monthly in
advance, one-twelfth (1/12) of the amount by which Xxxxxx's Proportionate Share
of the estimated Total Operating Expenses for such year is greater than the
Estimate Total Operating Expenses for the Base Year.
3.4 ADJUSTMENT. Within one hundred twenty (120) days after the end of
every calendar year during the lease term, the Landlord shall provide the Tenant
with a written statement of the actual Total Operating Expenses for that year.
If actual Total Operating Expenses should exceed the estimated amount previously
paid by Tenant with respect to such year, then the Tenant shall pay to the
Landlord the additional amount due to the Landlord within thirty (30) days. If
actual Total Operating Expenses are less than the estimated amount paid by
Tenant with respect to such year, then the Landlord shall credit against future
additional rent due under this Article the amount of overpayment by Xxxxxx.
3.5 DEFINITION. Total Operating Expenses are defined as all those
expenses necessary to operate and maintain the Building and the Property in a
manner deemed reasonable and appropriate by the Landlord, provided that such
expenses are reasonable and are supported
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by documentation. Such Total Operating Expenses include, but are not limited to,
the following:
(a) Wages, salaries and fringe benefits of all employees engaged
in the operation and maintenance of the Building; employer's Social Security
taxes, unemployment taxes or insurance, and any other taxes which may be levied
on such wages and salaries; the cost of disability and hospitalization insurance
and pension or retirement benefits for such employees;
(b) All supplies and materials used in operation and maintenance
of the Building;
(c) Cost of water and power, heating, lighting, air conditioning
and ventilating the Building;
(d) Cost of replacement of equipment and all maintenance and
service agreements on equipment, including alarm service, building mechanical
equipment and window cleaning;
(e) Cost of casualty and liability insurance applicable to the
Building and Landlord's personal property used in connection therewith;
(f) Cost of repairs and general maintenance;
(g) Any capital improvements made or installed after the Base Year
for purposes of saving labor or otherwise reducing applicable operating costs,
not to exceed the aggregate estimated cost savings annualized on a straight line
basis over the useful life of the capital improvements as determined by Landlord
in accordance with generally accepted accounting principles and practices in
effect at the time of acquisition of the capital item;
(h) Costs incurred in connection with maintaining any landscaping,
parking lots, pedestrian walkways, roadways or other improvements installed upon
the Property and which are for the benefit of the tenants of the Building;
(i) All real property taxes and assessments and governmental
charges whether federal , state, county or municipal, and whether they be taxing
districts or authorities presently taxing the Premises or by others,
subsequently created or otherwise, and any other taxes and assessments
attributable to the Property, the Building or its operation, including, but not
limited to, any tax or other levy, however denominated, on or measured by the
rent collected by the Landlord with respect to the Property and/or the Building,
or on the Landlord's business of leasing the Building, but excluding federal and
state taxes on income.
(j) A management fee , not-to exceed four and one-half percent
(4-1/2%) of gross Basic Rents which may be payable to the Landlord. There will
be no management fee charged so long as the property is owned by Xxxxxxx Xx.
One.
3.6 CONFIRMATION. The Landlord and the Tenant shall each from time to
time upon request of the other sign a written memorandum confirming the amount
of the additional rent as adjusted from time to time hereunder.
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3.7 EXCLUSIONS. Notwithstanding the foregoing, Total Operating Expenses
shall not include expenses for which the Landlord is reimbursed or indemnified
(either by an insurer, condemnor, tenant or otherwise); interest or amortization
of payments on any mortgage or mortgages, and rental under any ground or
underlying lease or leases; the cost of any work or service performed for or
facilities furnished to a tenant at the tenant's cost; the cost of correcting
defects (latent or otherwise) in the construction of the Building or in the
Building equipment, except that conditions (not occasioned by construction
defects) resulting from ordinary wear and tear shall not be deemed defects; and
the cost of capital improvements and depreciation or amortization (except as
provided in Section 3.5(g) or otherwise above).
3.8 PRORATION. Any operating expense increase for any calendar year
during the term of this Lease shall be apportioned so that the Tenant shall pay
its proportionate share of only that portion of the increase for such year as
falls within the term. This provision shall survive the expiration or earlier
termination of the term of this Lease.
3.9 INSTALLMENTS. If any special assessments are included as part of
the real estate taxes and such assessment may be paid in installments, the
tenant shall be obligated to pay only the tenant's proportionate share of the
installment falling within the term whether or not the landlord pays such
assessment in installments.
3.10 AREA. Unless otherwise stated in this Lease, all areas are stated
herein in square feet and are computed as "Rentable Area" as that term is
defined in American National Standard Z65.1-1980 (Reprinted May, 1981), or
otherwise known as the "BOMA Standard."
ARTICLE 4 SECURITY DEPOSIT/PREPAID RENT.
Tenant has deposited with Landlord the sum set forth in Item I of the
Basic Lease Provisions as security for the full and faithful performance of
every provision of this Lease to be performed by Xxxxxx. If Tenant defaults with
respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of rent, the repair of damage to the-
Premises caused by Tenant and/or cleaning the Premises upon termination of this
Lease, Landlord may use, apply or retain all or any part of this security
deposit for the payment of any rent or any other sum in default, the repair of
such damage to the Premises, to the cost of such cleaning or for the payment of
any other amount which Landlord may spend or become obligated to spend by reason
of Tenant's default or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default to the full extent permitted
by law. If any portion of said deposit is so used or applied during the terms of
this Lease, Tenant shall within ten (10) days after written demand therefore
deposit cash with Landlord in an amount sufficient to restore the security
deposit to its original amount and Tenant's failure to do so shall be a material
breach of this Lease. Landlord shall not be required to keep this security
deposit separate from its general' funds, and Tenant shall not be entitled to
interest on such deposit. If Tenant shall fully and faithfully perform every
provision of this Lease to be performed by it, the security deposit or any
balance thereof shall be returned to Tenant (or, at Landlord's option, to the
last assignee of Tenant's interest hereunder) at the expiration of the lease
term. If Tenant is not in default under this Lease Agreement and the deposit is
not otherwise applied in accordance
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with this Article 4, then the deposit shall be applied as payment of Basic Rent
for the sixtieth (60th) month of the lease term hereunder.
ARTICLE 5 UTILITIES AND SERVICES
Tenant shall pay for all water, gas, heat, light, power, telephone and
other utilities and services supplied to the Premises, together with any taxes
thereon. If any such services are not separately metered to Tenant, Tenant shall
pay a proportion of such charges attributed to the entire Building equal to
Xxxxxx's Pro-Rata Share of Operating Costs set forth as Item C in the Basic
Lease Provisions. Tenant shall be responsible for inspecting the utility
services available to the Premises to determine that such services are available
to the Premises to determine that such services are available in the quantity
necessary for Tenant's conduct of business within the Premises.
ARTICLE 6 USE OF PREMISES.
Tenant shall use and occupy the Premises only for purposes and under
the trade name set forth in Exhibit "C" attached hereto and incorporated by this
reference herein, and shall not use or occupy the Premises for any other
purpose, including, without limiting the generality of the foregoing, any
medical or dental office, clinic, laboratory or similar business, without the
prior written consent of Landlord. Tenant shall not use or occupy the Premises
in violation of law and shall, upon five (5) days' written notice from Landlord,
discontinue any use of Premises which is declared by any governmental authority
having jurisdiction to be a violation of law. Tenant, at its sole cost and
expense, shall comply with any direction of any governmental authority having
jurisdiction which shall impose any duty upon Tenant or Landlord with respect to
the Premises or the use or occupation thereof, by reason of the nature of
Tenant's use or occupancy of the Premises. Tenant shall not do or permit to be
done anything which will invalidate or increase the cost of any fire and
extended coverage insurance policy covering the Building. Tenant shall promptly
upon demand reimburse Landlord for any additional premium charged for such
policy by reason of Xxxxxx's failure to comply with the provisions of this
Article. Tenant shall be responsible for examining the zoning and use
restrictions applicable to the Premises to determine the suitability of the
Premises for Xxxxxx's intended use. At times, Tenant shall use the Premises in a
manner which conforms to the Covenants, Conditions and Restrictions encumbering
the Property, a copy of which is attached hereto as Exhibit "D" and incorporated
by this reference herein.
ARTICLE 7 ACCEPTANCE OF PREMISES.
Tenant acknowledges that neither Xxxxxxxx nor any agent of Landlord has made any
representation or warranty with respect to the Premises or the Building or with
respect to the suitability or fitness of either for the conduct of Xxxxxx's
business or for any other purpose. The taking of possession or use of the
Premises by Tenant for any purpose other than construction shall conclusively
establish that the Premises and the Building were at such time in satisfactory
condition (except for latent defects) and in conformity with the provisions of
this Lease in all respect. Prior to delivery of possession of the Premises,
Landlord shall install within the Premises those improvements identified on
Exhibit "E" attached hereto as "Landlord's Work Letter."
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ARTICLE 8 ALTERATIONS AND EQUIPMENT.
8.1 NO ALTERATIONS. Tenant shall make no alterations, additions or
improvements to the Premises, other than usual and customary installation of
trade fixtures, interior doors, walls, partitions and equipment necessary for
Tenant's business, without the prior written consent of Landlord, such consent
not to be unreasonably withheld, and Landlord may impose as a condition to such
consent such requirements as Landlord may reasonably deem necessary or
desirable, including, without limiting the generality of the foregoing,
requirements as to the manner in which, and the time or times at which such work
shall be done and the right to approve the contractor selected by Xxxxxx to
perform such work.
8.2 TENANT'S PROPERTY. All articles of personal property and all
business and trade fixtures, machinery and equipment, cabinet work, furniture
and movable partitions owned by Tenant or installed by Tenant at its expense and
in the premises shall be and remain the property of Tenant and may be removed by
Tenant at any time during the lease term when Tenant is not in default
hereunder, provided that Tenant repairs any damage to the Premises or the
Building caused by such removal. On the expiration of the term of this Lease, or
on any earlier termination of this Lease, Tenant shall- remove all such personal
property, etc., in accordance with the provisions of Article 20 below.
ARTICLE 9 LIENS.
Tenant shall keep the Premises and the Property free from any mechanic's liens
arising out of any work performed, materials furnished or obligations incurred
by Xxxxxx, and agrees to defend, indemnify and hold harmless Landlord from and
against any such lien or claim or action thereon, together with costs of suit
and reasonable attorneys' fees incurred by Landlord in connection with any such
claim or actions.
ARTICLE 10 TAX ON TENANT'S PROPERTY.
Tenant shall be liable for and shall pay not later than ten (10) days
before delinquency, all taxes levied against any personal property or trade
fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property and if Landlord, after thirty (30) days' written, notice to
Tenant, pays the same, which Landlord shall have the right to do regardless of
the validity of such levy, but only under proper protest if requested by Xxxxxx,
or if the assessed value of Landlord's property is increased by the inclusion
therein of a value placed upon such personal property or trade fixtures of
Tenant and if Landlord, after written notice to Tenant, pays the taxes based
upon such increased assessment, which Landlord shall have the right to do
regardless of the validity thereof, but only under proper protest if requested
by Xxxxxx, Tenant shall upon demand, as the case may be, repay to Landlord the
taxes so levied against Landlord, or the proportion of such taxes resulting from
such increase in the assessment; provided that, in any such event Tenant shall
have the right, in the name of Landlord and with Landlord's full cooperation,
but at no cost to Landlord, to bring suit in any court of competent jurisdiction
to recover the amount of any such taxes so paid under protest, any amount so
recovered to belong to Tenant.
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ARTICLE 11 MAINTENANCE AND REPAIR.
11.1 TENANT'S OBLIGATIONS. Subject to the provisions of Section 11.2
below, Tenant shall take good care of the Premises and fixtures therein, and all
utility systems and improvements installed within the Premises. Subject to the
provisions of Article 17 below, Xxxxxx shall reimburse Landlord for all repairs
thereto or to the Building which are made necessary as a result of any misuse or
neglect by Tenant or any of its officers, agents, employees, contractors,
licensees, visitors, guests or invitees.
11.2 LANDLORD'S OBLIGATIONS. Subject to the provisions of. Article 5
and Article 17 hereof, Landlord shall repair and maintain the Building structure
and the plumbing, air conditioning and electrical systems serving the Premises.
Landlord shall not be liable for any failure to make any repairs or to perform
any maintenance unless such failure shall persist for an unreasonable time after
written notice of the need for such repairs or maintenance is given to Landlord
by Tenant. Except as provided in Article 17 hereof, there shall be no abatement
of rent and no liability of Landlord by reason of any injury to or interference
with Xxxxxx's business arising from the making of any repairs, alterations or
improvements, Landlord shall interfere as little as reasonably practicable with
the conduct of Xxxxxx's business in the Premises.
ARTICLE 12 ENTRY AND INSPECTION.
Tenant will permit Landlord and its agents at all reasonable times
during normal business hours and at any time in case of emergency, in such
manner as to cause as little disturbance to Tenant as reasonably practicable,
(i) to enter into and upon the Premises for the purpose of inspecting the same,
or for the purpose of protecting the interest therein of Landlord, and (ii) to
take all required materials and equipment into the Premises, and perform all
required work therein, including the erection of scaffolding, props, or other
mechanical devices, for the purpose of making alterations, repairs or additions
to the Premises or to any other portion of the Building in which the Premises
are situated as may be provided for by this Lease or as may be mutually agreed
upon by the parties or as Landlord may be required to make by law or for
maintaining, any service provided by Landlord to Tenant hereunder, including
window cleaning and janitor service, without any rebate of rent to Tenant for
any loss of occupancy or quiet enjoyment of the Premises, or damage, injury or
inconvenience thereby occasioned. Tenant shall also permit Landlord and its
agents, upon request, to enter and/or pass through the Premises or any part
thereof, at reasonable times during normal business hours to show the Premises
to holders of encumbrances on the interest of Landlord under the Lease, or
prospective purchasers, mortgagees or lessees of the Building as an entirety,
and during the period of six (6) months prior to the expiration date of this
Lease, Landlord may exhibit the Premises to prospective tenants. Landlord shall
also have the right to enter on and/or pass through the Premises, or any part
thereof, at such times as such entry shall be required by circumstances of
emergency affecting the Premises or any other portion of the Building in which
the Premises are located. If during the last month of the term hereof Tenant
shall have removed substantially all of Tenant's property and personnel from the
Premises, Landlord may enter the Premises and repair, alter and redecorate the
same, without abatement of rent and without liability to Tenant, and such acts
shall have no effect on this Lease. Notwithstanding the foregoing, Xxxxxx may
refuse entry of any person into Tenant's fabrication area during hours of
operation and may restrict access to
7
secure areas at any time, except that Tenant shall admit persons absolutely
necessary in the event of an emergency or to prevent further damage to the
Premises.
ARTICLE 13 HOLD HARMLESS AND NON-LIABILITY.
Tenant agrees to hold harmless and to indemnify Landlord and any and
all affiliates of Landlord, including, without limitation, any corporations or
other entities controlling, controlled by or under common control with Landlord,
from and against any and all claims arising from injury to persons, loss of life
or damage to property occurring in or about the Premises and from and against
any and all costs, expenses and liabilities (including without limitation
reasonable attorneys' fees) incurred by Landlord, and/or said affiliates, or any
of them in or in connection with any such claim or any proceeding based thereon,
to the extent such injury, loss of life or damage arises out of the negligent or
willful act or failure to act of Tenant, or any of its officers, employees,
agents, contractors, licensees, visitors, guests or invitees. Throughout the
term of this Lease Tenant shall maintain the effect public liability/and
property damage insurance with limits of liability of not less than $1,000,000
single limit and showing Landlord as additional named insured under the policy.
Landlord agrees to save Tenant harmless from and to indemnify Tenant against any
and all claims arising from injury to persons, loss of life or damage to
property occurring in or about the Premises and from and 'against any and all
costs, expenses and liabilities incurred by Tenant in or in connection with any
such claim or any proceeding based thereon, to the extent such injury, loss of
life or damage arises out of the negligence or willful act or failure to act of
Landlord, of any of its officers, employees, servants, agents, contractors, or
licensees, provided, however, that in no event shall Landlord be liable to
Tenant for any damage to the Premises or for any loss, damage or injury to any
property of Tenant therein or thereon occasioned by bursting, rupture, leakage
or overflow of any plumbing or other pipes (including without limitation, water,
steam and/or refrigerant lines), sprinklers, tanks, drains, drinking fountains
or washstands, or other similar cause in, above, upon or about the Premises or
the Building in which the Premises are located, as long as such loss, damage or
injury is not caused by Xxxxxxxx's negligence or fault.
ARTICLE 14 WAIVER OF SUBROGATION.
It is agreed by the Landlord and Tenant that each party hereby releases the
other from any and all liability from or to the other party of every kind and
nature which may result from the perils of fire, lightning or extended coverage
perils which either originates, occurs or causes damage on the Premises herein
described, such waiver to include situations where the negligence of one of the
parties hereto or his agent, servant or representative causes or contributes to
the occurrence or the result of damage. Each party agrees to furnish appropriate
subrogation waiver endorsements of their respective fire insurance companies.-
ARTICLE 15 ASSIGNMENT AND SUBLETTING.
15.1 NO TRANSFER. Tenant shall not, either voluntarily or by operation
of law, assign, sell, encumber, pledge or otherwise transfer all or any part of
Tenant's leasehold estate hereunder, or permit the Premises to be occupied by
anyone other than Tenant or Tenant's employees or sublet-the Premises to be
occupied by anyone other than Tenant or Tenant's employees or sublet the
Premises or any portion thereof, without Landlord's prior written consent
8
in each instance. Xxxxxxxx's consent shall not be unreasonably withheld. In
reviewing such request, Landlord may consider the proposed transferee's credit,
proposed business use, and affect upon other -tenants of the Building or Project
of such assignment or subletting. Consent by Landlord to one or more assignments
of this lease or to one or more sublettings of the Premises shall not operate to
exhaust Landlord's rights under this paragraph. The voluntary or other surrender
of this lease by Tenant or a mutual cancellation hereof shall not work a merger,
and shall at the option of Landlord, terminate all or any existing subleases or
subtenancies or shall operate as an assignment to Landlord of such subleases or
subtenancies. If Tenant is a corporation which, or is an unincorporated
association or partnership, the transfer, assignment or hypothecation of any
stock or interest in such corporation, association or partnership in the
aggregate in excess of twenty-five percent (25%) of the total outstanding shall
be deemed an assignment within the meaning and provisions of this Article.
Xxxxxx agrees to reimburse Landlord for Landlord's reasonable costs and
attorneys' fees incurred in connection with the processing and documentation of
any such requested assignment, subletting, transfer, change ownership or
hypothecation of this Lease or Xxxxxx's interest in and to the Premises. The
transfer, sale or division of stock in Tenant to one or more persons or
entities, shall not constitute an assignment or subletting requiring Landlord's
written approval hereunder, unless the effect of such sale, transfer or division
would impair the financial condition of Tenant.
15.2 INFORMATION. If Tenant desires at any time to assign this Lease or
to sublet the Premises or any portion thereof, it shall first notify Landlord of
its desire to do so and shall submit in writing to Landlord (i) the name of the
proposed subtenant or assignee; (ii) the nature of the proposed subtenant's or
assignee's business to be carried on the Premises; (iii) the terms and
provisions of the proposed sublease or assignment; and (iv) such reasonable
financial information as Landlord may request concerning the proposed subtenant
within thirty (30) days of the request for Landlord's consent.
15.3 CONSENT. At any time within fifteen (15) days after Xxxxxxxx's
receipt of the information specified in Section 15.2 above, Landlord may by
written notice to Tenant elect to (i) consent to the subletting or assignment
upon the terms and to the subtenant or assignee proposed; (ii) refuse to give
its consent after considering the factors specified in Section 15.1 above.
Xxxxxx further agrees that no assignment or subletting consented to by Landlord
shall impair or diminish any covenant, condition or obligation imposed upon
Tenant by this Lease or any right, remedy or benefit afforded Landlord by this
Lease. If Landlord consents to such assignment or subletting, Tenant may, within
ninety (90) days after the date of Landlord's consent, enter into a valid
assignment or sublease of the Premises or portion thereof upon the terms and
conditions described in the information required to be furnished by Tenant to
Landlord pursuant to Section 15.2 above, or upon other terms not more favorable
to Tenant; provided, however, that any material change in such terms shall be
subject to Landlord's consent as provided in this Article 15. Notwithstanding
the foregoing, Landlord may condition consent to a proposed assignment or
sublease upon receipt of fifty percent (50%) of any consideration received by
Tenant as a result of such proposed assignment or sublease, which is in excess
of the rental payments due Landlord under this Lease.
15.4 NO RELEASE. No subletting or assignment, even with the consent of
Landlord, shall relieve Tenant of its obligation to pay the rent and to perform
all of the other obligations to
9
be performed by Xxxxxx xxxxxxxxx. The acceptance by Landlord of any payment due
hereunder from any other person shall not be deemed to be a waiver by Landlord
of any provision of this Lease or to be a consent to any assignment or
subletting.
ARTICLE 16 TRANSFER OF LANDLORD'S INTEREST.
In the event of any transfer or transfers of Landlord's interest in the
Premises, the Building or Property of which the Premises are a part, other than
a transfer for security purposes only, the transferor shall be automatically
relieved of any and all obligations and liabilities on the part of Landlord
accruing from and after the date of such transfer, including, without
limitation, the obligation of Landlord under Article 4 above to return the
security deposit as provided therein, provided such obligations and liabilities
are assumed in writing by the transferee.
ARTICLE 17 DAMAGE OR DESTRUCTION.
17.1 REPAIRS. If the Premises are damaged by any casualty, the damage
shall be repaired by and at the expense of Landlord, provided such repairs can
be made within one (1) year after notice to Landlord of the occurrence of such
damage, and, except as set forth herein below, until such repairs are completed,
the rent shall be abated in proportion to the part of the Premises which is
unusable by Tenant in the conduct of its business. There shall be no abatement
of rent by reason of any portion of the Premises being unusable for a period
equal to one day or less.
17.2 TERMINATION. If such repairs cannot be made within such one (1)
year period Landlord may, at its option, make them within a reasonable time and
in such event this Lease shall continue in effect and the rent shall be abated
in the manner and to the extent provided above. Xxxxxxxx's election to make such
repairs must be evidenced by written notice to Tenant within thirty (30) days
after notice to Landlord of the occurrence of the damage advising Tenant whether
or not Landlord will make such repairs and the estimated time for completing the
same. If Landlord does not so elect to make such repairs which cannot be made
within such one (1) year period, then Tenant may either, by written notice to
Landlord, cancel this Lease as of the date of the occurrence of such damage or
elect itself to undertake the repairs and continue this Lease in full force and
effect. In the event that Tenant elects to undertake the repairs, Xxxxxxxx will
reimburse Tenant up to an amount equal to the insurance proceeds available to
Landlord by reason of such damage or destruction.
17.3 TENANT'S RIGHT TO TERMINATE. In case of any damage or destruction
mentioned in this Article which Landlord is required or undertakes to repair as
provided herein, Tenant may terminate this Lease by notice to Landlord any time
prior to completion of the required repairs if Landlord has not restored and
rebuilt the Premises (exclusive of any property of Tenant or improvements
installed by Tenant located. therein) to substantially the same condition as
existed immediately prior to such damage or destruction within one (1) year
after notice to Landlord of the occurrence of such damage or destruction, or
such longer period as Landlord as estimated pursuant to Section 17.2, plus such
additional period thereafter (not exceeding six months) as shall equal the
aggregate period Landlord may have been delayed in doing so by acts of God,
adjustment of insurance, labor trouble, governmental controls, unavailability of
materials, or any other cause beyond Landlord's reasonable control.
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17.4 NO DAMAGES. No damages, compensation or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Premises or other portion of the
Building, unless such repair or restoration is necessitated by the negligence or
fault of Landlord or any of its officers, employees, servants, agents,
contractors or licensees. Landlord shall use its best efforts to effect such
repair or restoration promptly and in such manner as not unreasonably to
interfere with Xxxxxx's use and occupancy.
17.5 LANDLORD'S INSURANCE. Landlord shall not be required to carry
insurance of any kind on Tenant's property and, except by reason of the breach
by Landlord of any of its obligations hereunder (subject to the provisions of
Article 14 above), shall not be obligated to repair any damage thereto to
replace the same.
17.6 TOTAL DESTRUCTION. A total destruction of the Building shall
automatically terminate this Lease.
ARTICLE 18 EMINENT DOMAIN.
18.1 EMINENT DOMAIN. If the whole of the Premises or so much thereof as
to render the balance unusable by Tenant shall be taken under power of eminent
domain, this Lease shall automatically terminate as of the date of such
condemnation, or as of the date possession is taken by the condemning authority,
whichever is earlier. No award for any partial or entire taking or compensation
paid as a result of a deed in lieu of condemnation, shall be apportioned, and
Tenant hereby assigns to Landlord any award which may be made in such taking or
condemnation, together with any and all rights of Tenant now or hereafter
arising in or to the same or any part thereof, provided, however, that nothing
contained herein shall be deemed to give Landlord any interest in or to require
Tenant to assign to Landlord any award made to Tenant for the taking of personal
property and fixtures belonging to Xxxxxx and/or for the interruption of or
damage to Tenant's business and/or for Tenant's unamortized cost of leasehold
improvements if such awards are separately available to Tenant and such awards
do not diminish the award to Landlord.
18.2 PARTIAL TAKING. In the event of a partial taking which does not
result in a termination of this Lease, rent shall be abated in proportion to the
part of the Premises so made unusable by Tenant.
18.3 TEMPORARY TAKING. No temporary taking of the Premises and/or of
Tenant's rights therein or under this Lease shall terminate this Lease or give
Tenant any right to any abatement of rent hereunder; any award made to Tenant by
reason of any such temporary taking shall belong entirely to Tenant and Landlord
shall not be entitled to share therein.
ARTICLE 19 DEFAULTS AND REMEDIES.
19.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute a material default and breach of this Lease by Xxxxxx:
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(i) Any failure by Tenant to pay the rental or to make any
other payment required to be made by Tenant hereunder, where such
failure continues for fifteen (15) days after written notice thereof by
Landlord to Tenant;
(ii) The abandonment or vacation of the Premises by Xxxxxx.
(iii) Any failure by Tenant to observe and perform any other
material provision of this Lease to be observed or performed by Tenant,
where such failure continues for thirty (30) days (except where a
different period of time is specified in this Lease) after written
notice by Landlord to Tenant; If the nature of such default is such
that the same cannot reasonably be cured within such thirty (30) day
period, Tenant shall not be deemed to be in default if Tenant shall
within such period commence such cure and thereafter diligently
prosecute the same to completion.
(iv) The making by Tenant of any general assignment for the
benefit of creditors; the filing by or against Tenant of a petition to
have Tenant adjudged a bankrupt or of a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case
of a petition filed against Tenant, the same is dismissed within sixty
(60) days); the appointment of a trustee or receiver to take possession
of substantially all of Xxxxxx's assets located at the Premises or of
Tenant's interest in this Lease, where possession is not restored to
Tenant within thirty (30) days; or the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is
not discharged within thirty (30) days.
19.2 REMEDIES. In the event of any such default by Tenant, then, in
addition to any other' remedies available to Landlord at law or in equity,
Landlord shall have the immediate option to terminate this Lease and all rights
of Tenant hereunder by giving Xxxxxx written notice of such election to
terminate. In the event that Landlord shall elect to so terminate this Lease
then Landlord may recover from Tenant:
(i) The worth at the time of award of any unpaid rent which
had been earned at the time of such termination; plus
(ii) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss Tenant proves
could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which
the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that Tenant proves could be
reasonably avoided; plus
(iv) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Xxxxxx's failure to perform its
obligation under this Lease or which in the ordinary course of things
would be likely to result therefrom; and
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(v) At Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by
applicable law.
The term "rent" as used herein shall be deemed to be and to mean the Basic Rent
and all other sums required to be paid by Tenant pursuant to the terms of this
Lease. As used in subparagraphs (i) and (ii) above, the "worth at the time of
award" is computed by allowing interest at the rate of twelve percent (12%) per
annum. As used in subparagraph (iii) above, the "worth at the time of award" is
computed by discounting such amount at twelve percent (12X) per annum.
19.3 RE-ENTRY. In the event of any such default by Tenant, Landlord
shall also-have the right, with or without terminating this Lease, to re-enter
the Premises and remove all persons and property from the Premises. Such
property may be removed and stored in a public warehouse or elsewhere at the
cost of and for the account of Tenant.
19.4 CONTINUING OBLIGATION. In the event of the vacation or abandonment
of the Premises by Tenant or in event that Landlord shall elect to re-enter as
provided above or shall take possession of the Premises pursuant to legal
proceeding or pursuant to any notice provided by law, then if Landlord does not
elect to terminate this Lease as provided in this Article 19, then Landlord may
from time to time, without terminating this Lease, either recover all rental as
it becomes due or relet the Premises or any part thereof for such term or terms
and at such rental or rentals and upon such other terms and conditions as
Landlord in its sole discretion may deem advisable with the right to make
alterations and repairs to the Premises.
19.5 RELETTING. In the event that Landlord shall elect to so relet,
then rentals received by Landlord from such reletting shall be applied; first,
to the payment of any indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any cost of such reletting; third, to the
payment of the cost of any alterations and repairs to the Premises; fourth; to
the payment of rent due and unpaid hereunder; and the residue, if any, shall be
held by Landlord and applied in payment of future rent as the same may become
due and payable hereunder. Should that portion of such rentals received from
such reletting, during any month which is applied by the payment of rent
hereunder, be less than the rent payable during that month by Tenant hereunder,
then Tenant shall pay such deficiency to Landlord immediately upon demand
therefore by Landlord. Such deficiency shall be calculated and paid monthly.
Tenant shall also pay to Landlord as soon as ascertained, any costs and expenses
incurred by Landlord in such reletting or in making such alterations and repairs
not covered by the rentals received from such reletting.
19.6 NO ELECTION. No re-entry or taking possession of the Premises by
Landlord pursuant to this Article 19 shall be construed as an election to
terminate this Lease unless a written notice of such intention be given to
Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction. Notwithstanding any reletting without termination by Landlord
because of any default by Xxxxxx, Landlord may at any time after such reletting
elect to terminate this Lease for any such default.
13
ARTICLE 20 SURRENDER OF PREMISES; REMOVAL OF PROPERTY.
20.1 NO MERGER. The voluntary or other surrender of this Lease by
Tenant to Landlord, or a mutual termination thereof, shall not work a merger,
and shall at the option of Landlord, operate as an assignment to it of any or
all subleases or subtenancies affecting the Premises.
20.2 CONDITION. Upon the expiration of the term of this Lease, or upon
any earlier termination of this Lease, Tenant shall quit and surrender
possession of the Premises to Landlord in as good order and condition as the
same are now or hereafter may be improved by Landlord or Tenant, reasonable wear
and tear and repairs which are Landlord's obligation excepted, and shall,
without expense to Landlord, remove or cause to be removed from the Premises all
debris and rubbish, all furniture, equipment, business and trade fixtures,
free-standing cabinet work, moveable partitioning and other articles of personal
property owned by Tenant or installed or placed by Tenant at its expense in the
Premises (exclusive of any items described in Section 20.4 below) and all
similar articles of any other persons claiming under Tenant unless Landlord
exercises its option to have any subleases or subtenancies assigned to it, and
Tenant shall repair all damages to the Premises resulting from such removal.
20.3 STORAGE. Whenever Landlord shall re-enter the Premises as provided
in Article 19 hereof, or as otherwise provided in this Lease, any property of
Tenant not removed by Tenant upon the expiration of the term of this Lease (or
within forty-eight (48) hours after a termination by reason of Tenant's
default), as provided in this Lease, shall be considered abandoned and Landlord
may remove any or all of such items and dispose of the same in any manner or
store the same in a public warehouse or elsewhere for the account and at the
expense and risk of Tenant, and if Tenant shall fail to pay the cost of storing
any such property after it has been stored for a period of ninety (90) days or
more, Landlord may sell any or all of such property at public or private sale,
in such manner and at such times and places as Landlord, in its sole.
discretion, may deem proper, after notice to Tenant, for the payment of all or
any part of such charges or the removal of any such property, and shall apply
the proceeds of such sale: first, to the cost and expenses of such sale,
including reasonable attorneys' fees actually incurred; second, to the payment
of the cost of or charges for storing any such property; third, to the payment
of any other sums of money which may then or thereafter be due to Landlord from
Tenant under any of the terms hereof; and fourth, the balance, if any, to
Tenant.
20.4 FIXTURES. All equipment, whether or not attached, electrical
panels and furniture, including but not limited to modular office units, may be
removed by Tenant at the end of the term. Tenant shall be responsible for
repairing any damage caused by the removal of any equipment, panels, or
furniture from the Premises. All other fixtures, alterations, additions,
improvements and/or appurtenances attached to or built into the Premises prior
to or during the term, including, but not limited to, cabinetry, sinks, and
other similar Tenant improvements, shall be and remain part of the Premises and
shall not be removed by Tenant at the end of the term unless otherwise expressly
provided for in the Lease or unless such removal is required by Landlord
pursuant to the provisions of Article 8, above.
14
20.5 NOTICE. Tenant shall, at least ninety(90) days before the last day
of the term hereof, give to Landlord a written notice of intention to surrender
the Premises on that date, but nothing contained herein shall be construed as an
extension of the term hereof or as consent of Landlord to any holding over by
Xxxxxx.
ARTICLE 21 COSTS OF SUIT.
RIGHT TO FEES. If Tenant or Landlord shall bring any action for any
relief against the other, declaratory or otherwise, arising out of or under this
Lease, including any suit by Landlord for the recovery of rent or possession of
the Premises, the losing party shall pay the successful party a reasonable sum
for attorneys' fees in such suit, including attorneys' fees incurred in any
appeal. Such attorneys' fees shall be deemed to have accrued on the commencement
of such action and shall be paid whether or not such action is prosecuted to
judgment.
ARTICLE 22 WAIVER.
The waiver by Landlord or Tenant of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition as to any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to-be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
ARTICLE 23 HOLDING OVER.
If Tenant holds over after the term-hereof, with or without the express
or implied consent of Landlord, such tenancy shall be from month to month only,
and not a renewal hereof or any extension for any further term, and in such case
rent shall be payable in the amount and at the time specified in Articles 2 and
3 hereof, and such month to month tenancy shall be subject to every other term,
covenant and agreement contained herein. Nothing contained in this Article 23
shall be construed as consent by Landlord to any holding over by Xxxxxx and
Landlord expressly reserves the right to require Tenant to surrender possession
of the Premises to Landlord as provided in Article 20 above forthwith upon the
expiration of the term of this Lease or other termination of this Lease.
ARTICLE 24 SUBORDINATION.
Tenant agrees that this Lease shall be subject and subordinate to any
first mortgage, trust deed or like encumbrance heretofore or hereafter placed by
Landlord or its successors in interest upon its interest in said Premises to
secure the payment of monies loaned, interest thereon, and other obligation;
provided, that, the mortgagees or beneficiaries named in said mortgages, trust
deeds, or like encumbrances placed on Landlord's interest in the Premises
subsequent to this Lease Agreement shall agree to recognize the interest of
Tenant under this Lease Agreement in the event of foreclosure, if Tenant is not
then in default. Xxxxxx agrees to execute and deliver, upon demand of Landlord,
any and all instruments desired by Landlord subordinating in the manner
requested by Landlord in this Lease to such mortgage, trust, deed or
15
like encumbrance. Tenant further appoints Landlord as its attorney in fact for
the term of this Lease to execute on behalf of Tenant any such instruments
subordinating this Lease to such mortgage, trust, deed or like encumbrance. The
subordination of this Lease to any such mortgage, deed of trust or other
encumbrance shall, however, be subject to the condition that in the event of the
sale of the real property of which the Premises are a part upon foreclosure or
upon the exercise of a power of sale, Tenant will, upon written request of the
purchaser, attorn to the purchaser and recognize the purchaser as the Landlord
under this Lease.
ARTICLE 25 RULES AND REGULATIONS
Landlord reserves the right to adopt reasonable rules and regulations
governing the use of the Premises and the Property from time to time. A copy of
Landlord's initial Rules and Regulations is attached hereto as Exhibit "F" and
incorporated by this reference herein.
ARTICLE 26 DEFINED TERMS.
The words "Landlord" and "Tenant," as used herein, shall include the
plural as well as the singular. Words used in neuter gender include the
masculine and feminine and words in the masculine or feminine gender include the
neuter. If there be more than one Tenant, the obligations hereunder imposed upon
Tenant shall be joint and several. The headings or titles to the articles of
this Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part thereof.
ARTICLE 27 HEIRS AND ASSIGNS.
Subject to the provisions of Article 15 hereof relating to assignment
and subletting, this Lease is intended to and does bind the heirs, executors,
administrators, personal representatives, successors and assigns of any and all
of the parties hereto.
ARTICLE 28 TIME OF ESSENCE.
Time is of the essence of this Lease.
ARTICLE 29 SEPARABILITY.
If any term or provision of this Lease, the deletion of which would not
adversely affect the receipt of any material benefit by either party hereunder,
shall be held invalid or unenforceable to any extent, the remainder of this
Lease shall not be affected thereby and each term and provision of this Lease
shall be valid and enforceable to the fullest extent permitted by law.
ARTICLE 30 ENTIRE AGREEMENT.
This instrument along with any exhibits and attachments or other
documents affixed hereto or referred to herein (including without limitation the
Work Letter) constitutes the entire and exclusive agreement between Landlord and
Tenant relative to the Premises herein described, and this agreement and said
exhibits and attachments and other documents may be
16
altered, amended or revoked only by an instrument in writing signed by both
Landlord and Xxxxxx. Landlord and Tenant hereby agree that all prior or
contemporaneous oral agreements, understandings, and/or practices relative to
the leasing of the Premises are merged in or revoked by this agreement.
ARTICLE 31 WORK LETTER.
The Premises shall be finished in accordance with the separate
agreement of the parties executed contemporaneously herewith, which agreement is
entitled and is referred to herein as "Work Letter," and attached hereto as
Exhibit "E."
ARTICLE 32 RIGHT OF LANDLORD TO PERFORM.
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, other than rent, required to be paid by it hereunder or shall fail. to
perform any other act on its part to be performed hereunder, and such failure
shall continue beyond any applicable grace period set forth in Article 19,
Landlord may, but shall not be obligated so to do, and without waiving or
releasing Tenant from any obligations of Tenant, make any such payment or
perform any such other act on Tenant's part to be made or performed as in this
Lease provided. All sums so paid by Xxxxxxxx and all necessary incidental costs,
together with interest thereon at the rate of twelve percent (12%) per annum
from the date of such payment by Landlord, shall be payable to Landlord on
demand and Tenant covenants to pay any such sums, and Landlord shall have (in
addition to any other right or remedy of Landlord) the same rights and remedies
in the event of the nonpayment thereof by Tenant as in the case of default by
Tenant in the payment of the rent.
ARTICLE 33 INTEREST ON TENANT'S OBLIGATIONS.
Any amount due from Tenant to Landlord which is not paid when due shall
bear interest at the rate of twelve percent (12%) per annum until paid (to the
extent enforceable by law), but the payment of such interest shall not excuse or
cure the default.
ARTICLE 34 NOTICES.
All notices which Landlord or Tenant may be required, or may desire, to serve
on the other may be served, as an alternative to personal service, by mailing
the same by registered or certified mail, postage prepaid, addressed as set
forth in Item J of the Basic Lease Provisions, or from and after the
Commencement Date, to the Tenant at the Premises whether or not Tenant has
departed from, abandoned or vacated the Premises, or addressed to such other
address or addresses as either Landlord or Tenant may from time to time
designate to the other in writing.
ARTICLE 35 QUIET ENJOYMENT.
Landlord covenants and agrees that Tenant, upon paying the basic rent,
additional rent and all other charges herein provided for and observing and
keeping the covenants, agreements
17
and conditions of this Lease on its part to be kept, shall lawfully and quietly
hold, occupy and enjoy the Premises during the term of this Lease without
hindrance or molestation of anyone lawfully claiming by, through or under
Xxxxxxxx, subject, however, to the matters herein set forth.
ARTICLE 36 ESTOPPEL CERTIFICATES.
36.1 OBLIGATION TO EXECUTE. Xxxxxx agrees at any time and from time to
time upon not less than twenty (20) days' prior notice by Xxxxxxxx to execute,
acknowledge and deliver to Landlord a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), and the dates to which the basic rent, additional rent and
other charges have been paid in advance, if any, and stating whether or not to
the best knowledge of the signer of such certificate, Landlord is in default in
performance of any covenant,' agreement or condition contained in this Lease
and, if so, specifying each such default of which the signer may have knowledge,
it being intended that any such statement delivered pursuant to this section may
be relied upon by any prospective purchaser of the fee of the Property or any
mortgagee thereof or any assignee of any mortgagee upon the fee of the Property.
36.2 LANDLORD'S CERTIFICATE. Xxxxxxxx agrees at any time and from time
to time upon not less than twenty (20) days' prior notice by Tenant to execute,
acknowledge and deliver to Tenant a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there shall have been
modifications, that the same is in full force and effect as modified and stating
the modifications) and the dates to which the basic rent, additional rent and
other charges have been paid in advance, if any, and stating whether or not to
the best knowledge of the signer of such certificate Tenant is in default in the
performance of any covenant, agreement or condition contained in this Lease and,
if so, specifying each such default of which the signer may have knowledge, it
being intended that any such statement delivered pursuant to this Section may be
relied upon by any prospective assignee of the Tenant's interest in this Lease.
ARTICLE 37 ACCESS, CHANGES IN BUILDING FACILITIES, NAME.
37.1 RESERVATION. All except the inside surfaces of all walls, windows
and doors bounding the Premises (including exterior building walls, core
corridor walls and doors and any core corridor entrance), and any space in or
adjacent to the Premises used for shafts, stacks, pipes, conduits, fan rooms,
ducts, electric or other utilities, sinks or other Building facilities, signage,
and the use thereof, as well as access thereto through the Premises for the
purposes of operation, maintenance, decoration and repair, are reserved to
Landlord.
37.2 RIGHT TO REPAIR. Tenant shall permit Landlord to install, use and
maintain pipes, ducts and conduits within the demising walls, bearing columns
and ceilings of the Premises.
ARTICLE 38 OPTION TO RENEW.
Tenant shall have an option to renew this Lease Agreement for __________
additional five-year periods. In order to exercise said option to renew, Xxxxxx
must notify Landlord in writing at least sixty (60) days prior to the expiration
of the term of this Lease Agreement or any renewal
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thereof. The same terms and conditions provided in this Lease Agreement will
apply to any renewal thereof, except that Basic Rent, as provided for in Basic
Lease Provision D and Article 2 herein, shall escalate as __________ on page i
hereof.
IN WITNESS WHEREOF, this Lease is made and entered into as of the day
and year first above written.
LANDLORD: XXXXXXX NO. ONE
By: Emkay Development Company, Inc.,
its managing partner
By:
----------------------------------
Xxx X. Xxxxxx, Area Manager
TENANT: ADVANCED POWER TECHNOLOGY, INC.
Xxxxxxx Xxxxxx
By:
----------------------------------
Its: President
STATE OF WASHINGTON )
) ss:
COUNTY OF KING )
On this_______ day of _________, 1985, before me personally appeared
_______________ to me known to be the_______________ of __________________, the
corporation that executed the within and foregoing instrument, and acknowledged
the said instrument to be the free and voluntary act and deed of said
corporation, for the uses and purposes therein mentioned, and on oath stated
that he was authorized to execute said instrument and that the seal affixed is
the corporate seal of said corporation.
WITNESS my hand and official seal hereto affixed the day and year first
above written.
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EXHIBIT C
USE OF PREMISES
Tenant may use the Premises only for the purpose of office or
production of semiconductor and related activity or for other light
manufacturing or warehousing purposes.
TRADE NAME OF TENANT
Tenant shall operate the premises under the trade name of Advanced Power
Technology, Inc., or such other business or- corporate name as tenant may from
time to time assume.
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EXHIBIT E
WORK LETTER
This agreement supplements the Lease dated March 21, 1985 executed
concurrently herewith by XXXXXXX XX. ONE, as Landlord, and ADVANCED POWER
TECHNOLOGY, INC., as Tenant.
1. Tenant shall devote such time in consultation with Landlord as may
be necessary to enable the latter to complete and obtain Xxxxxx's written
approval within thirty working days after the execution hereof, the final
working drawings for Xxxxxx's Premises showing, among other things, the location
of standard partitions, doors, light fixtures, electrical outlets, telephone
outlets and other standard installations required by Tenant, as well as wall
finishes and floor coverings. Construction drawings for special installations
shall be furnished by Xxxxxx, who shall be responsible for the design, function
and maintenance of such special improvements, whether or not installed by
Landlord at Tenant's request.
2. Landlord's Tenant Improvements, as set out in the architectural
drawings currently in the bid package and approved by both Landlord and Tenant,
plus any changes that may occur during the course of construction,-shall be.
supplied and installed in Tenants' Premises, at Landlord's expense; provided,
that the total amount of such improvements does not exceed Three Hundred
Thousand % - Dollars ($300,000). Any Tenant Improvement costs over and above the
$300,000 ceiling shall be paid by Tenant to Landlord upon satisfactory
completion of the improvements. Up to $225,000 of such costs over the $300,000
ceiling shall be paid in the form of a Note in favor of XXXXXXX NO. ONE, payable
at the rate of thirteen (13) percent amortized over five years. The balance
shall be paid in cash.
3. Promptly upon completion of working drawings, Landlord shall notify
Tenant in writing of the cost to Tenant for quantities in excess of Landlord's
standards, as described in Paragraph 2 above. Tenant and Landlord will agree
upon an amortization schedule for such excess tenant improvements plus interest.
Tenant shall, by signing and returning to Landlord a copy of such notice, give
Landlord authorization to complete the Premises in accordance with such working
drawings and shall accompany said authorization with the amount of Tenant's cost
for the authorized excess over Xxxxxxxx's standards. Tenant may, in such
authorization, delete any or all of such items of extra cost. If such written
authorization and check are not received by Landlord within five (5) working
days after delivery of such notice to Tenant, Landlord shall not be obligated to
commence work on Tenant's Premises, and Tenant shall be chargeable with any
delay in the completion of the Premises resulting therefrom.
4. If Tenant shall request any change, addition or alteration in the
approved working drawings, Landlord shall promptly give Tenant a written
estimate of the maximum cost of engineering and design services to prepare
working drawings in accordance with such request. If Tenant approves such
estimate in writing, Landlord shall have such working drawings prepared and
Tenant shall promptly reimburse Landlord for the cost thereof not in excess of
such estimate. Promptly upon completion of such working drawings, Landlord shall
notify Tenant in writing of the cost which will be chargeable to Tenant by
reason of such change, addition or deletion. Tenant shall within three (3)
business days notify Landlord in writing whether it desires to
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proceed with such change, addition or deletion, and in the absence of such
written authorization, Landlord shall not be obligated to continue work on
Tenant's Premises and Tenant shall be chargeable with any delay in the
completion of the Premises resulting therefrom. If any alterations, additions or
improvements are to be installed by Tenant or its contractors, such work shall
be done in compliance with the following:
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EXHIBIT F
RULES AND REGULATIONS ATTACHED
TO AND MADE A PART OF OFFICE LEASE
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or used for any purpose
other than ingress and egress. The halls, passages, entrances, elevators,
stairways, balconies and roof are not for the use of the general public, and
Landlord shall in all cases retain the right to control and prevent access
thereto by all persons whose presence in the judgment of the Landlord shall be
prejudicial to the safety, character, reputation or interests of the Building
and its tenants, provided that nothing herein contained shall be construed to
prevent such access by persons with whom the tenant normally deals in the
ordinary course of its business unless such persons are engaged in illegal
activities. No tenant and no employees of any tenant shall go upon the roof of
the Building without the written consent of Landlord.
2. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of the Landlord.
3. No signs,, advertisement or notice shall be exhibited, painted or
affixed by any tenant on any part of, or so as to be seen from the outside of,
the Premises of the Building without the prior written consent of Landlord. In
the event of the violation of the foregoing by any tenant, Landlord may remove
same without any liability, and may charge the expense incurred in such removal
to the tenant violating this rule. Interior signs on doors and directory tablet
shall be inscribed, painted or affixed for each tenant by the Landlord at the
expense of such tenant, and shall be of a size, color and type acceptable to the
Landlord. All signs and advertising must comply with the recorded Xxxxxxx Center
Covenants, Conditions and Restrictions and design guidelines.
4. The wash room partitions, mirrors, wash basins and other plumbing
fixtures shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags or other substances shall be thrown
therein. All damage resulting from any misuse of the fixtures shall be borne by
the tenant who, or whose servants, employees, agents, visitors or licensees,
shall have caused the same.
5. No tenant shall mark, paint, drill into, or in no way deface any
part of the Premises or the Building.
6. No bicycles, vehicles, vending machines or animals of any kind shall
be brought into or kept in or about the Premises and no cooking shall be done or
permitted by any tenant on the Premises except that the preparation of coffee,
tea, hot chocolate and similar items for the tenant and its employees and
business visitors shall be permitted. No tenant shall cause or permit any
unusual or objectionable, odors to escape from the Premises.
7. No tenant shall make, or permit to be made any unseemly or
disturbing noises, sounds or vibrations or disturb or interfere with occupants
of this or neighboring buildings or
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premises or those having business with them whether by the use of any musical
instrument, radio, phonograph, unusual noise, or in any other way.
8. No tenant shall throw anything out of doors or down the passageways.
9. The Landlord shall have the right to prohibit any advertising by any
tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as an office building and upon written notice from
Landlord any tenant shall refrain from or discontinue such advertising.
10. All doors opening into public corridors shall be kept closed,
except when in use for ingress and egress.
11. All pedestrian walkways, plaza and other public areas forming a
part of the Building shall be under the sole and absolute control of Landlord
with the exclusive right to reasonably regulate and control these areas. Xxxxxx
agrees to conform to the rules and regulations that may be established by
Landlord for these areas from time to time. Landlord may from time to time adopt
reasonable regulations to. control the access of the general public to and from
such public areas.
A. No such work shall proceed without Landlord's prior written
approval of (i) Tenant's contractor, (ii) Certificate of
Insurance from an approved company, furnished to Landlord by
Xxxxxx's contractor, in an amount of not less than
$200,000/$500,000 for public liability and automobile liability
endorsed to show Landlord as an additional insured, and (iii)
detailed plans and specifications for such work.
B. All such work shall be done in conformity with a valid building
permit when required, a copy of which shall be furnished to
Landlord before the work is commenced, and any work not so
conforming shall be promptly replaced at Tenant's expense.
Notwithstanding any failure by Landlord to object to any such
work, Landlord shall have no responsibility therefore.
C. All work by Tenant or its contractor shall be scheduled through
Landlord.
X. Xxxxxx shall reimburse Landlord for any extra expense incurred by
Landlord by reason of such faulty work done by Tenant or its
contractors, or by reason of delays caused by such work, or by
reason of inadequate cleanup.
E. Tenant or its contractors will in no event be allowed to install
plumbing, mechanical, electrical wiring or fixtures, acoustical
or integrated ceilings, or partitions over the ceiling height
partition unless approved by Landlord.
F. All data processing and other special electrical equipment shall
be installed in conformance with the available electrical supply.
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5. If the completion of Landlord's work in Tenant's Premises
is delayed by Xxxxxx's failure to comply with the foregoing provisions,
or by Tenant's requirement of materials or installations different from
Landlord's Standard Installations, or by changes in the work ordered by
Xxxxxx then notwithstanding the provisions of Article 9 of the Basic
Lease Provisions of said lease, the lease term shall commence and the
rent shall commence to accrue on August 1, 1985. September 1, 1985.
"LANDLORD" "TENANT"
By: By:
----------------------------- -----------------------------
By: By:
----------------------------- -----------------------------
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