Reference: Section 17(a)iv
LEASE AND ADDENDA FOR BUILDING #7
AND
FIVE ACRES OF LAND
(PRECAST PLANT AND STORAGE YARD)
ADDENDUM TO LEASE
This is an addendum to that certain Lease dated December 20, 1996,
between CROWN WEST REALTY, L.L.C., as lessor, and CXT, INCORPORATED, as lessee,
pursuant to which the lessee leased from the lessor Building No. 7 and
approximately five acres of land.
Paragraph 5.1 of the said Lease is hereby amended to read as follows:
5.1 Option to Terminate This Lease Lessee is hereby granted the one-time option
to terminate this Lease effective December 31, 1999, by giving the lessor not
less than 90 days' prior written notice, said notice to be accompanied by a
payment of $100,000.00 which, should said option to terminate be exercised,
constitutes the consideration for the early termination of this Lease.
DATED this _____ day of _________,1998.
CROWN WE REALTY, L.L.C.
By: _____________________ By: ________________________
Title: President Title: President
STATE OF WASHINGTON
)ss.
County of Spokane
On this day personally appeared before me ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and on oath
stated that he was authorized to execute the instrument and acknowledged it as
the President of CROWN WEST REALTY,, L.L.C.; to be the free and voluntary act of
such party for the uses and purposes therein mentioned.
GIVEN under my hand and official seal this ______ day of ________________.
Name Printed: _________________
NOTARY PUBLIC in and for the State of Washington,
residing at Spokane.
Appointment Expires:____________
STATE OF WASHINGTON
)ss. county of Spokane
On this day personally appeared before me ▇▇▇▇ ▇. ▇▇▇▇▇, and on oath
stated file he was authorized to execute the instrument and acknowledged it as
the President of CXT, INCORPORATED, to be the free and voluntary act of such
party the uses and purposes therein mentioned.
OQ
GIVEN under my hand and official seal this ___________ of ______________ 1998.
Name Printed.__________________ I
NOTARY PUBLIC in and for the State
of Washington, residing at Spokane.
Appointment Expires:
LEASE
CROWN WEST REALTY, L.L.C.
Lessor
CXT INCORPORATED
Lessee
Dated: December 20, 1996
Page No.
13.2 Pre-approved Additions .........................................6
13.2.1 Batch Plant ..................................................6
13.2.2 Rail Line ....................................................6
13.2.3 Additional Cranes ............................................6
13.2.4 Hot Oil Heat Exchangers ......................................6
13.2.5 Exterior 33-Ton Crane ........................................6
14. Repairs or Services by Lessor ....... . . . . . . . . . . . . 7
14.1 Building Repair . . . . . . . . . . . . . . . . . ........... 7
14.2 Services . . . . . . . . . . . . . . . . . . ........... . . .7
15. Repairs by Lessee . . . . . . . . . . .... . . . . . . . . . .7
16. Surrender on Termination . . . . . . . . ....... . . . . . . .7
17. Mechanic's Liens 8
18. Signs, Lights and Sounds 8
19. Displays of Merchandise ......................................8
20. Streets, Parking Areas and Rules ........... . . . . . . . . .8
21. Access . . ... . . . . . . . . . . . . . . . . . . . . . . . .9
22. Utilities . . . . . .... . . . . . . . . . . . . . . . . . . .9
23. All Charges Deemed Rent . ......... . . . . . . . . . . . . . 9
24. Indemnification and Insurance ................................9
24.1 In General ............... 9
24.1.1 Acts or Omissions ............................................9
24.1.2 Accidents ...................................................10
24.1.3 Breach of Lease .............................................10
24.1.4 Lessor's Performance ........................................10
24.1.5 Hazardous Substances ........................................10
24.2 Lessee Liability Insurance ..................................10
24.3 Notice of Claim .............................................11
24.4 Waiver by Lessee ............................................11
25. Insurance and Waiver of Subrogation .........................11
26. Damage/Rebuilding 12
27. Condemnation 12
28. Taxes, Assessments and Insurance Premiums 13
28.1 Reimbursement ................................... 13
28.2 Lessee's Taxe 13
29. Non-waiver of Breach 14
30. Default 14
31. Litigation Costs/Venue 14
32. Removal of Personal Property by ▇▇▇▇▇▇ ▇▇
▇▇. Removal of Property by Lessor 15
34. Loading Platforms .......................................... 15
35. Insolvency ..................................................15
36. Assignments and Subletting . ...... .........................15
36.1 Consent Required . . .. . . . . . . . . . . . . . 15
36.2 Change in Lessee Ownership . . . . . . . . . . . . ..... . . 15
36.3 Request for Consent . . . . . . . . . . . . . . .............15
36.4 Reimbursement of Costs ......................................16
36.5 Withholding Consent .........................................16
36.6 Conditions of Consent ............................ 16
36.7 Increased Rent Shared .......................................16
36.8 Submit Documents ............................................16
36.9 Assignee Bound ................................... 16
36.10 Lessee Remains Obligated ....................................16
36.11 Additional Notice ...........................................16
36.12 Joint Liability .............................................17
36.13 Default .....................................................17
37. Statements by Lessee . . . . . . . . . . . . . .......... . .17
38. Subordination . . . . . . . . ...... . . . . . . . ..........17
39. Short Form Lease . . . . . . . . . . . . . . . . ...... . . .17
LEASE
This Lease made and entered into this 20th day of December, 1996, between CROWN
WEST REALTY, L.L.C. hereinafter referred to as "Lessor", and CXT INCORPORATED,
a Delaware corporation, hereinafter referred to as "Lessee",
WITNESSETH:
It is agreed by and between Lessor and Lessee as follows:
1. Description of Premises. Lessor hereby leases to Lessee and Lessee hereby
leases from Lessor those certain premises, hereinafter referred to as
"Premises", situated in Spokane County, State of Washington, described as:
Building #7 comprising approximately 120,000 square feet and approximately rive
acres of land to be used for storage immediately east of Building #7, across
5th Street, (See Exhibit B attached) located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ being
part of an organized industrial district commonly referred to as the "Spokane
Business & Industrial Park," hereinafter referred to as the "Park" as shown on
the attached Exhibit A and more particularly described as follows:
The South Half of Section 1, and that portion of Section 12 lying North of the
Northerly right of way line of the Spokane International Railroad, Township 25
North, Range 44 East of the Willamette Meridian, County of Spokane, State of
Washington.
The Lessee may use the five acres to store material. All materials shall be
stored in a neat and secure manner. Except for those improvements which the
Lessor specifically agrees to provide, as set forth in this Lease, the Lessee
shall be responsible for the installation, construction and maintenance of all
improvements to the Premises.
Lessee shall have the right to cross ▇▇▇ ▇▇▇▇▇▇ between the said five-acre
parcel and Building 7 without going to an intersection, provided that
north-south traffic on ▇▇▇ ▇▇▇▇▇▇ has the right of way and Lessee's vehicles
thus crossing ▇▇▇ ▇▇▇▇▇▇ shall not unreasonably impede north-south traffic on
▇▇▇ ▇▇▇▇▇▇.
2. Term. The term of this Lease shall be 76 months, commencing on the 1st
day of December, 1996 and ending on the 31st day of March, 2003.
3. Rent. The monthly base rent which includes base year taxes, assessments,
insurance and common area costs, except as provided in paragraph 28, shall be as
follows:
December 1, 1996 through March 31, 1997 $ 0.00
April 1, 1997 through October 31, 1997 $15,600.00
November 1, 1997 through September 30, 1998 $16,800.00
October 1, 1998 through September 30, 1999 $20,400.00
October 1, 1999 through September 30, 2000 $20,400.00
October 1, 2000 through September 30, 2001 $21,600.00
October 1, 2001 through September 30, 2002 $21,600.00
October 1, 2002 through March 31, 2003 $24,000.00
Said rental for each month shall be paid to Lessor monthly in advance on or
before the first business day of the month for which said rent is due at the
office of Lessor at the Park.
A late charge of 1%% of the delinquent amount will be added to all amounts of
base rent and additional due that are not received by the tenth of the month in
which they are due.
4. Option To Extend. Lessee is hereby granted options to extend this Lease for
two additional five-year terms upon all of the terms and conditions, except
rent, as provided in this Lease, modified only as necessary to conform to
applicable laws and regulations; provided that the Lessee is, both at the time
of exercising an option to extend and at the time of commencement of the
extended term, not in material default under the then-current lease. In order
to exercise an option to extend, the Lessee must give written notice to the
Lessor not less than 150 days prior to the expiration of the then-current lease
term.
The base rent during the option terms, if exercised, shall be as follows:
April 1, 2003 through March 31, 2004 $31,200.00
April 1, 2004 through March 31, 2005 $32,292.00
April 1, 2005 through March 31, 2006 $ 33,422.00
April 1, 2006 through March 31, 2007 $34,592.00
April 1, 2007 through March 31, 2008 $ 35,803.00
April 1, 2008 through March 31, 2009 $37,056.00
April 1, 2009 through March 31, 2010 $38,353.00
April 1, 2010 through March 31, 2011 $ 39,695.00
April 1, 2011 through March 31, 2012 $41,084.00
April 1, 2012 through March 31, 2013 $42,522.00
5.Options To Terminate.
5.1 This Lease. Lessee is hereby granted the one-time option to
terminate this Lease effective on February 28, 1999, by giving Lessor not less
than 150 days' prior written notice. If said option to terminate is exercised,
Lessee shall pay Lessor $32,500.00, representing reimbursement to Lessor of
$15,000.00, being 50% of the amount that the Lessor has agreed to pay toward
the cost of repairing cranes; plus $17,500.00, being approximately 50% of the
cost incurred by Lessor in complying with paragraph 10.7.
5.2 S-20 Lease. Lessee is currently leasing Building #S-20, on Lot 18,
BSP 88-21 from Lessor pursuant to a Lease dated November 1, 1991. Provided that
Lessee does not exercise its option to terminate this Lease as provided in
paragraph 5. 1, Lessee is hereby granted
the option to terminate the said Lease of Building #S-20 effective on either
December 31, 1998, or December 31, 1999, by giving written notice to Lessor not
less than 150 days prior to the termination date, which shall be stated in the
notice, and by paying Lessor the sum of $4,800.00 per month on the first
business day of each month, commencing in the month of January immediately
following the termination date and continuing through March, 2003. Late charges
would apply if not paid on time, the same as with rent.*
*Should Lessee exercise its option to terminate its lease for Building #S-20
under this paragraph #5.2, then Lessee's option to terminate this lease for
Building #7 under paragraph #5.1 shall expire and become null and void.
6. Possession/Peaceful Enjoyment. Lessee shall be entitled to possession of the
Premises on December, 1, 1996, it being recognized that the prior tenant of
Building #7 is in the process of moving out so that the Lessee will not have
full use of the Premises until the prior tenant finishes moving out. Except as
provided above, the Lessee shall have peaceful and quiet enjoyment throughout
the term of this Lease and any exercised option terms, all subject to the
Lessee performing its obligations under this Lease.
7. Holding Over. If the Lessee shall, with the written consent of Lessor, hold
over after the expiration of the term of this Lease, or any exercised option
term, such tenancy shall be on a month-to-month basis, and may be terminated as
provided by the laws of the State of Washington. During such tenancy, Lessee
agrees to pay to the Lessor the rental rate set forth in the written consent,
and to be bound by all the terms, covenants and conditions of the lease then in
effect. If the Lessee holds over without the written permission of the Lessor,
Lessee shall be tenant at sufferance and shall pay base rent on a daily basis
at a rate per day equal to 5% of the monthly rent then in effect.
8. Lease Deposit. Waived.
9. Business Purposes. The Premises are to be used for the purpose of conducting
therein and thereon the following business: The manufacture of concrete
products, steel fabrication, equipment repair and other related manufacturing
activities, and the storage of related materials and products, and for none
other without the prior written consent of Lessor. Lessee shall promptly notify
Lessor of any proposed change in use of the Premises, but in no event later
than 14 days prior to said proposed change. Lessor's consent to any proposed
change shall not to be unreasonably withheld or delayed.
10. Acceptance of Premises.
10.1 As Is. Except as otherwise specifically provided in this Lease,
Lessee, having made a careful and complete inspection of the Premises, accepts
said Premises strictly "AS IS" in their present condition and without any
representations or warranties, express or implied, as to their condition or
suitability for Lessee's intended use.
10.2 Existing Cranes. There are presently three ten-ton cranes
installed in Building #7 which the parties recognize are in need of repair. The
Lessee will, within a reasonable time, perform all repairs necessary to put the
cranes in good working order and in compliance with applicable laws and
regulations. The Lessor will reimburse the Lessee for the cost of such
under this paragraph #5.2, then Lessee's option to terminate this lease for
Building #7 under paragraph #5.1 shall expire and become null and void.
repairs to the extent of $30,000.00. Thereafter the Lessee shall maintain said
cranes in good working order throughout the term of this Lease and any
extensions or renewals thereof.
10.3 Office HVAC. The Lessor represents that the HVAC system for the
office area is in normal operating condition. The Lessor will perform any
repairs necessary to put the office HVAC system in normal operating condition,
provided that the need for repair is called to the Lessor's attention by
written notice given not later than December 13, 1996. Thereafter the Lessee
shall maintain said HVAC system in good working order throughout the term of
this Lease and any extensions or renewals thereof. Lessor shall provide Lessee
with a report from a licensed HVAC contractor certifying that both the heating
and air conditioning aspects of the HVAC system are in good operating condition
at the commencement of this Lease.
10.4 New Doors. The Lessor will, within a reasonable time, and in no
event later than January 31, 1997, install four additional electrically
operated truck access doors as shown on Exhibit C attached. Upon completion of
the installation of all four doors, the Lessee will reimburse the Lessor for
the cost thereof to the extent of $10,500.00.
10.5 Existing Doors. All existing overhead doors, man doors and
windows shall be in good operating condition as of the commencement of this
Lease. The Lessor will perform any repairs necessary to make such doors and
windows in operating condition, provided that the need for repair is called to
the Lessor's attention by written notice given not later than December 13,
1996. Thereafter the Lessee shall maintain said doors and windows in good
working order throughout the term of this Lease and any extensions or renewals
thereof.
10.6 Overhead Power Line. The Lessor will, upon the written request of
the Lessee given at any time during the first year of this Lease, and at the
Lessee's cost, relocate the existing overhead power line at the east end of the
building so as to provide reasonable 'clearance for the Lessee's equipment
moving in and out of Building #7.
10.7 Gravel. The Lessor will grade the five-acre parcel which is part
of the Premises and will remove topsoil, black dirt and organic matter in order
to establish a firm mineral soil base and will install three inches of7/s " or
11/4" minus crushed gravel, all within a reasonable time, and as weather
permits.
10.8 Paving. The Lessor will, within a reasonable time, and not later
than June 30, 1997, asphalt pave the area between the east end of Building #7
and ▇▇▇ ▇▇▇▇▇▇.
10.9 5th Street Gate. The Lessor will, within a reasonable time, and
not later than February 28, 1997, install a gate for access to the Park from
▇▇▇ ▇▇▇▇▇▇. The gate will be locked other than during general business hours.
The gate will be controlled by an access card system or similar device. A
reasonable number of access cards or similar access devices will be checked out
to the Lessee so that the Lessee will have access to Building #7 from ▇▇▇
▇▇▇▇▇▇ at all times.
10. 10 Interior Rail Line. Lessor will, upon receipt of such funds
from the prior tenant, reimburse Lessee to the extent of $5,000.00 of the
Lessee's cost of reinstalling interior continuous rail line in accordance with
plans approved by Lessor, such approval not to be unreasonably withheld or
delayed.
11. Compliance with Laws. Lessee shall, at all times, and at its sole expense,
keep and use the Premises in accordance with applicable laws and ordinances and
in accordance with applicable directions, rules and regulations of public
bodies or entities. Lessee shall not overload the floors, cranes or other parts
of the Premises, and shall permit no waste of, or damage or injury to, the
Premises, and will not permit the Premises to be used in any way which is
unlawful, offensive or dangerous, or which may be, or become, a nuisance, or in
any manner which is, by reason of the emission of dust, odor, gas, fumes,
smoke, or noise, noxious or offensive to a person of normal sensibilities
occupying space in an industrial park or in a manner that significantly
increases the risk of fire. The Lessee's use of concrete vibrators in the
ordinary course of its business shall not constitute a violation of this
paragraph.
12. General Obligations of Lessee. Lessee shall, at all times, keep the
Premises, loading platforms, parking area, and service areas adjacent to the
Premises clean and free from snow, ice, ash, rubbish, dirt, and unlawful
structures and shall store all products, materials (hazardous or otherwise),
dangerous substances, trash and garbage securely within the Premises. Lessee
shall arrange for weekly (or more often if needed) pick-up of such trash and
garbage as may be generated by Lessee, all at the Lessee's expense. Lessee may
install a waste dump area on the south side of Building #7 in accordance with
plans approved by Lessor, such approval not to be unreasonably withheld or
delayed. Should Lessee fail to remove trash, garbage, refuse or materials from
any location outside of the Premises within three days after written notice
from Lessor, Lessor, at its option, may remove such items at Lessee's expense.
Lessee agrees to hold Lessor harmless from any loss or damage resulting from
Lessor's removal of any such items. Lessee shall permit no animals to be kept
on the Premises.
13. Alterations.
13.1 Consent Required. Lessee shall not, without the prior written
consent of Lessor, make any alterations, additions, or improvements in or to
said Premises, which consent shall not be unreasonably withheld or delayed.
Lessor's consent may be conditioned on an agreement (a) that the same will be
removed by the Lessee at the termination of this Lease, or (b) that the same
will be maintained in good repair by the Lessee and left on the Premises at the
termination of this Lease. Lessee shall make no perforations in the building
shell without prior review and approval of a duly licensed structural engineer
and the prior written approval of the Lessor. Trade fixtures, appliances and
equipment shall not be deemed alterations, additions or improvements unless the
removal of the same would do material damage to the Premises. Unless
specifically agreed to by Lessor in writing, Lessee shall not be compensated in
any manner for an alteration, addition, or improvement to the Premises. Should
Lessee fail to request written consent from Lessor at least 14 days prior to
initiation of alterations, additions, or improvements, Lessee shall, at
Lessor's option, be obligated to pay all costs incurred by
Lessor associated with performing a due diligence evaluation of Lessee's
proposal, including without limitation the cost of Lessor's employees and the
costs of legal, engineering and architectural services.
13.2 Pre-approved Additions. The following alterations, additions and
improvements are hereby approved by the Lessor, all to be performed at the sole
cost and expense of the Lessee and in accordance with plans approved by the
Lessor prior to the commencement of the work, approval not to be unreasonably
withheld:
13.2.1 Batch Plant. Lessee may erect a concrete batch plant
and wash down sump on the west or south side of Building #7 in accordance with
plans approved by Lessor, such approval not to be unreasonably withheld or
delayed. Lessee's plans shall include, but not be limited to, the precise area
to be occupied, the design of the structure and final paint color. All
construction shall be subject to environmental approvals, governmental
approvals and building permits. On the termination of this Lease the Lessee
may, and will, if so requested by Lessor, remove the batch plant and restore
the area, including parking, to its prior condition. Lessee shall give notice
to Lessor at least 30 days prior to the termination of this Lease as to whether
or not it elects to remove the batch plant. Within 30 days after receipt of
such notice or, if no notice is given, then within 30 days after the
termination of this Lease, Lessor may notify Lessee that Lessee is required to
remove the said batch plant
13.2.2 Rail Line. Lessor will make available to Lessee, at no
cost, all rail and switch material currently in its possession, which is not
presently being used or specifically planned for future use, for the purpose of
constructing approximately 1,000 feet of rail line in Building #7 and on the
five-acre parcel. The installation will be in accordance with plans approved in
writing by the Lessor prior to the commencement of the work, approval not to be
unreasonably withheld or delayed. The rail line, as thus installed, will be
left in place on termination of this Lease.
13.2.3 Additional Cranes. Lessee may install additional
cranes in the two, 39-foot span wing bays. Lessee will provide all steel
supports, duct bar and the cranes themselves. All such installation will be in
accordance with plans approved by the Lessor prior to the commencement of the
work, approval not to be unreasonably withheld or delayed. Lessee may, and
will, if so requested, in the same manner as provided in paragraph 13.2. 1,
remove all such installations and restore the Premises to its prior condition.
13.2.4 Hot Oil Heat Exchangers. Lessee may install a Hot Oil
Exchanger(s) inside the building, subject to all state, local and environmental
inspections and approvals, and approval of plans by Lessor prior to the
commencement of the work, approval not to be unreasonably withheld. Lessee may,
and will, if so requested, in the same manner as provided in paragraph 13.2. 1,
remove all such installations and restore the Premises to its prior condition.
13.2.5 Exterior 33-Ton Crane. Lessee may install a 33-ton overhead bridge
crane with supporting steel structure at the east end of Building #7 utili2ing
the existing
concrete pillars. Lessee may, and will, if so requested by Lessor, in the same
manner as provided in paragraph 13.2.1, remove the same and the concrete
pillars, at the termination of this Lease.
14. Repairs or Services by Lessor.
14.1 Building Repair. Lessor shall, throughout the terms of this Lease
and any exercised renewal term, keep in good order, condition, and repair the
foundation, exterior walls (except the interior faces thereof), sprinkler
system, if any, down spouts, gutters, and roof of the Premises, except for
repairs necessitated or caused by any act or negligence of Lessee, its
employees, agents, invitees, licensees or contractors. Lessee shall be liable
for repairs necessitated by such negligence only to the extent of the
deductible amount under any policy of property damage insurance maintained by
Lessor, not to exceed the sum of $25,000, provided, however, that there shall
be no obligation to make such repairs as are the obligation of the Lessor,
until after the expiration of five days' written notice from Lessee to Lessor
of the need thereof.
14.2 Services. At any time during the Lease or any exercised option
term, should Lessee request any special services from Lessor not otherwise
provided for in this agreement, and if the services are of such a nature that
the Lessor can reasonably provide them, Lessor will use its best efforts to
provide said special services. Lessee shall be obligated to reimburse Lessor
for all reasonable costs incurred in providing said services. Reasonable costs
shall include but not be limited to such things as attorney fees, engineering
services, and other professional fees, salary and benefits for employees of the
Lessor and third parties employed by Lessor to provide such special services.
The term "special services" includes, but is not limited to, such things as
negotiations with financial institutions servicing Lessee, execution of Consent
and Waiver Agreements, and emergency response assistance by employees or
independent contractors employed by Lessor who assist Lessee in preventing or
reducing damage to the Premises for which Lessee is responsible.
15. Repairs by Lessee. Except as otherwise provided, Lessee shall keep and
maintain said Premises in a neat, clean and sanitary condition and in as good
condition as at the inception of this Lease or as they may be in at any time
during the continuance of this Lease, including without limitation all HVAC
systems and equipment, all electrical wiring and fixtures, all cranes, all
plumbing and sewage facilities and all windows, overhead doors and man doors,
docks and appurtenances, within or attached to Building #7 or on the Premises.
Lessee's duty to repair shall include replacement of parts or components of the
Premises, or fixtures in the Premises that cannot be repaired. In the event
Lessee fails to promptly undertake and reasonably complete repairs required
under this paragraph, Lessor may, at its option, make the repairs at the
expense of Lessee and the cost of the repairs shall be additional rent and
shall be immediately due and payable.
16. Surrender on Termination. At the expiration of this Lease or its earlier
termination, Lessee shall, without notice, turn in all keys and access cards,
or similar devices, and re-deliver possession of said Premises to Lessor broom
clean and in as good condition as they were in at any time during the Lease
term, including any exercised option, ordinary wear and tear and damage by
insured peril or uninsured casualty not the fault of the Lessee, excepted.
17. Mechanic's Liens. Lessee agrees to pay when due all sums that may become
due for any labor, services, materials, supplies, or equipment furnished at the
instance of the Lessee, in, upon or about the Premises and which may be secured
by any mechanic's, materialman's or other lien against the Premises and/or
Lessor's interest therein, and will cause each such lien to be fully discharged
and released at the time of any obligation secured by any such lien matures
and/or becomes due; provided that if the Lessee in good faith disputes the
claim of lien the Lessee may pursue such dispute in any lawful manner, provided
that it bonds against such lien to the Lessor's reasonable satisfaction.
18. Signs, Lights and Sounds. Lessee shall not erect or install any exterior
signs or symbols without Lessor's prior written consent. Lessee shall not use
any advertising media or other media, such as loudspeakers, phonographs or
radio broadcasts, that may be deemed objectionable to Lessor or other tenants
of the Park, or that can be heard outside the Park. Lessee shall not install
any exterior lighting, shades or awnings or any exterior decorations or
paintings, or build any fences or make any changes to the exterior portions of
the Premises without Lessor's consent. Any signs or symbols so placed on the
Premises shall be removed by the Lessee at the termination of this Lease and
the Lessee shall repair any related damage or injury to the Premises. If not so
removed by Lessee, the Lessor may have the same removed and repairs performed
at Lessee's expense.
19. Displays of Merchandise. Lessee shall not keep or display any merchandise
on, or otherwise obstruct, any street, loading platforms or areaways adjacent
to the Premises, except that Lessee may store products, materials or
merchandise in a neat and orderly manner in the area between the south wall of
Building #7 and the rail line immediately south of Building #7. Lessee shall
not otherwise store products, materials or merchandise in any areas outside of
the Premises, provided that Lessee may, with Lessor's prior approval, such
approval not to be unreasonably withheld or delayed, display its products at
the primary entrance to Building #7, but not in such a way as to obstruct any
street, platform or common areas.
20. Streets, Parking Areas and Rules. Lessor shall keep the streets 20 feet on
each side of the center lines and areas used in common by the tenants of the
Park, as designated by Lessor from time to time, in reasonable repair and
condition, including such snow removal as Lessor may reasonably deem necessary
for normal access to the Premises. Lessor reserves the right to promulgate such
reasonable rules and regulations relating to the use of the streets and parking
areas within the Park as it may deem appropriate and for the best interests of
all tenants and Lessee agrees to abide by such rules and to cooperate in the
observance thereof. Such rules and regulations shall be binding upon Lessee
upon delivery of a copy thereof to Lessee. Such rules and regulations may be
amended by Lessor from time to time with or without advance notice and all such
amendments shall be effective upon the delivery of a copy thereof to Lessee,
provided that such rules and regulations shall not be amended in such a way as
to impose an
unreasonable financial burden on Lessee. Lessee shall not obstruct any portion
of the common areas. Any violation of such rules and regulations by Lessee, its
officers, agents, employees or invitees will constitute a breach of this Lease
and entitle the Lessor to claim a default in the same manner and to the same
extent as any other default under the Lease. Lessee shall comply with all rules
and regulations of the applicable fire district or other governmental entities
having jurisdiction over the Premises.
21. Access. Lessor shall have free access to the Premises at all reasonable
times for purposes of inspecting of the same or of making repairs, additions or
alterations to said Premises but this right shall not constitute or be
construed as an agreement on the part of Lessor to make any repairs, additions
or alterations, except such as Lessor is obligated to make. Lessor shall have
the right to place and maintain "For Rent" signs in a conspicuous place or
places on the Premises and to show the Premises to prospective tenants for 90
days prior to the expiration or sooner termination of this Lease.
22. Utilities. Lessee shall pay all charges for light, heat, water, gas,
sewage, telephone and aquifer protection and other utilities which shall be
provided to, or charged against, the Premises. In the event that electricity,
heat, water, telephone or other utilities are furnished through Lessor, Lessee
shall pay Lessor therefor according to Lessee's use thereof at the rates
established therefor by Lessor, said rates to be no higher, however, than those
which Lessee would be required to pay a third-party provider an available
public utility company if it directly furnished such service to Lessee.
23. All Charges Deemed Rent. All costs, expenses, and other charges which the
Lessee assumes or agrees to pay pursuant to this Lease shall be deemed to be
additional rent. In the event of a non-payment, Lessor shall have all the
rights and remedies herein provided for in case of non-payment of rent.
24. Indemnification and Insurance.
24.1 In General. Lessee releases and, subject to the provisions of
paragraph 25, shall defend, indemnify and hold harmless Lessor, and each of its
officers, directors, managers, members, owners, employees, agents and
representatives, from and against all liabilities, obligations, damages,
penalties, fines, judgments, claims, costs, charges, fees and expenses,
including, but not limited to, costs of investigation and correction, costs of
remediation or removal of hazardous materials, and reasonable architect,
attorney and consultant fees and costs, which may be imposed upon, incurred by,
or asserted against, Lessor or its officers, directors, members, owners,
employees, agents or representatives by reason of any of the following:
24.1.1 Acts or Omissions. Any act or omission in, on, about
or arising out of, or in connection with, the use, operation, maintenance and
occupancy of the Premises or any part thereof, whether or not consented to by
Lessor, by Lessee, or Lessee's agents, contractors, servants or employees
(whether or not within the scope of their employment), licensees or
invitees, except to the extent caused by the negligence or intentional
misconduct of Lessor or its agents, contractors, subcontractors, servants or
employees;
24.1.2 Accidents. Any accident, injury, casualty, loss, theft
or damage whatsoever to any person or tangible property occurring in, on, about
or arising out of, or in connection with, the use or occupancy by Lessee of the
Premises, any common area, roadway, alley, basement, pathway, curb, parking
area, passageway or space under or adjacent thereto arising from any cause or
occurrence whatsoever, except to the extent caused by the negligence or
intentional misconduct of Lessor or its agents, contractors, subcontractors,
servants or employees;
24.1.3 Breach of Lease. Any failure on the part of Lessee or
any of its agents, contractors, subcontractors, servants or employees to
perform or comply with any of the covenants, agreements, terms, provisions,
conditions or limitations contained in this Lease;
24.1.4 Lessor's Performance. Any act performed by Lessor in the exercise of
any of Lessor's rights under this Lease; or
24.1.5 Hazardous Substances. Any presence, release,
discharge, disposal, dumping, spilling or leaking (accidental or otherwise),
now or hereafter determined to be unlawful or subject to environmental laws or
governmentally imposed remedial requirements, occurring on the Premises during
the Lessee's occupancy thereof, of any hazardous, dangerous or toxic substance
of any kind (whether or not now or hereafter regulated, defined or listed as
hazardous, dangerous or toxic by any local, state, or federal government) into,
onto or under the ground or the air, soil, surface water, or ground water
thereof, or the pavement, structure, sewer system, fixtures, equipment, tanks,
containers or personalty at the Premises, or from the Premises, into, onto
orunder the Park or the property of others. Any violation of paragraph 42. The
foregoing indemnity shall apply notwithstanding any provisions of federal,
state or local law which provide for exoneration from liability in the event of
settlement with any governmental agency, and notwithstanding Lessor's consent,
knowledge, action or inaction with respect to the act or occurrence giving rise
to such right of indemnity, provided that Lessee shall, in no event, have any
liability with respect to any hazardous substances that are present on the
Premises at the inception of this Lease. Lessor shall indemnify Lessee and hold
Lessee harmless with respect to any liability with respect to any hazardous
substances that are present on the Premises at the inception of this Lease.
24.2 Lessee Liability Insurance. Lessee agrees to carry Commercial
General liability insurance insuring both Lessee and Lessor, with insurance
carriers satisfactory to Lessor, with not less than $2,000,000 single limit and
providing a Certificate of Insurance evidencing the same with not less than a
30-day cancellation clause, provided, however, that Lessee's obligation to
indemnify and hold harmless Lessor as provided in this paragraph shall be to
the extent only of the degree of negligence attributable to Lessee, its
officers, employees, agents, invitees, or guests. Such insurance certificate
shall also include not less than $50,000 "Fire Damage" liability for damage to
the Premises. In the alternative, Lessee may carry "Building Legal Liability
Insurance Special Form" (insurance industry forms CP0040 and CP1030 or
equivalent) against Lessee's liability (pursuant to paragraphs (14.1 and 25).
24.3 Notice of Claim. If any action or proceeding is brought against
Lessor or its officers, directors, managers, members, owners, employees, agents
or representatives by reason of any claim indemnified under paragraph 24 Lessor
shall promptly notify Lessee of such claim and Lessee, at Lessee's expense,
shall immediately resist or defend such action or proceeding employing counsel
approved by Lessor in writing, which approval shall not be unreasonably
withheld. In connection with any such action brought against Lessor by any one
or more of Lessee's employees, Lessee waives any immunity, defense or other
protection that might be afforded to Lessee by any worker's compensation,
industrial insurance or similar laws, with regard to such claim or action
against Lessor.
24.4 Waiver by Lessee. Lessee waives and releases all claims against
Lessor, its officers, managers, partners, employees, agents and
representatives, for any loss, injury or damage (including consequential
damages), to Lessee's property or business during the term of this Lease
occasioned by theft, act of God, public enemy, riot, strike, insurrection, war,
order of court, governmental body or authority not resulting from any act or
omission of Lessor, earthquake, flood, fire, explosion, falling objects, steam,
water, rain or snow, leak or by flow of water, rain or snow from the Premises
or onto the Premises or from the roof, street, surface or subsurface or from
any other place, or by dampness, or by the breakage, leakage, obstruction or
defects of the pipes, sprinklers, wires, appliances, plumbing, heating, air
conditioning, lighting fixtures of the Improvements, or by the construction,
repair or alteration of the Premises or by any other acts or omissions of any
other tenant or occupant of the Park, or visitor to the Park or the Premises or
by any third party whomsoever, or by any cause which is beyond Lessor's
control.
24.5 Lessee's obligations under this paragraph 24 shall survive any
termination or expiration of this Lease.
25. Insurance and Waiver of Subrogation. Lessor shall maintain fire and
extended coverage insurance on the buildings and improvements at the Park which
belong to Lessor and pay for the same, subject to partial reimbursement as
provided in paragraph 28.1. If the activities of the Lessee shall increase the
cost of such insurance or jeopardize the availability of coverage due to
Lessee's operations or failure to comply with fire codes and regulations,
Lessor shall have the right to increase the rental payable hereunder by an
amount equal to the increased cost of insurance premiums resulting therefrom.
If Lessor's insurance hereunder should be canceled due to any actions of
Lessee, Lessor may terminate this Lease upon 20 days' notice to Lessee as
provided in paragraph 30.
Lessee shall maintain appropriate property insurance covering its personal
property, assets, and fixtures located on the Premises.
Lessor and Lessee each waive all rights to recover against the other or against
the officers, directors, shareholders, partners, members, owners, joint
ventures, employees, agents, customers, invitees, or business visitors of the
other for any loss or damage to its property arising from any cause except that
Lessee shall remain liable for Lessor's -deductible up to a maximum amount of
$25,000 for its obligations under paragraphs 14 and 15 and the waiver provided
herein to that extent shall not apply. Lessor and Lessee will cause their
respective insurers to issue appropriate waiver of subrogation rights
endorsements to all policies of insurance carried in connection with the
Premises or the contents thereof.
26. Damage/Rebuilding. If the Premises are destroyed or damaged by acts of war,
the elements (including earthquake), or fire to such an extent as to render the
same untenantable in whole or in substantial part, the Lessor has the option of
rebuilding or repairing the same to be exercised by giving notice to Lessee of
its intent to rebuild or repair the Premises or the part so damaged within 30
days after receiving notice of the occurrence of any such damage. If the Lessor
elects to rebuild or repair and does so without unnecessary delay, Lessee shall
continue to be bound by this Lease except that during such period the base rent
shall be abated in the same proportion that the Premises are rendered unfit for
occupancy by Lessee. If the Lessor fails, for 30 days after the Lessee gives
notice of the damage-causing event, to give notice of its intent to repair,
Lessee shall have the right to declare this Lease terminated. Lessor's
obligation (should it elect to repair or rebuild) shall be limited to the
Premises as they existed at the commencement of this Lease, including those
improvements which the Lessor was required to perform, and Lessee shall
forthwith replace or fully repair, at its expense, all exterior signs, trade
fixtures, equipment and other installations originally installed by Lessee or
remove the same and repair any damage caused by their removal. Lessee agrees to
give prompt written notice to Lessor of any fire loss or of any other damage
which may occur to the leased Premises or any portion thereof, or of any other
condition or occurrence causing the leased -Premises to be untenantable.
27. Condemnation. If the Premises, or any part thereof the loss of which
impairs the utility of the Premises to a significant extent, are appropriated
or taken for any public use by virtue of eminent domain or condemnation
proceeding, or by conveyance in lieu thereof, or if by reason of law or
ordinance or by court decree, whether by consent or otherwise, the use of the
Premises by Lessee for any of the specific purposes herein before referred to
shall be prohibited, Lessee shall have the right to terminate this Lease upon
written notice to Lessor, and rent shall be paid only to the time when the
Lessee surrenders possession of the Premises. In the event of a partial taking,
if Lessee is entitled to, but does not elect to, terminate this Lease it shall
continue in possession of that part of the Premises not so taken under the same
terms and conditions hereof, except that there shall be an equitable reduction
of the base rental payment hereunder. All compensation awarded or paid upon
such a total or partial taking of the fee of the Premises shall belong to and
be the property of Lessor, whether such compensation be awarded or paid as
compensation for diminution in value of the leasehold or to the fee; provided
however, Lessor shall not be entitled to any award made to Lessee for loss of
business, depreciation to, and cost of removal of stock and/or fixtures,
provided that no award for such claims shall reduce the amount of any award
made to Lessor.
28. Taxes, Assessments and Insurance Premiums.
28.1 Reimbursement. The Lessee will reimburse the Lessor for increases
over 1996 (base year) amounts in the amount of real property taxes and
assessments, and for this purpose assessments will be paid by the Lessor in the
minimum required amount per year, and premiums for fire insurance, with
extended coverage applicable to all insurable buildings and improvements in the
Park, including without limitation the cranes now or hereafter installed in the
Premises, and with deductibles of $25,000.00 for losses by fire and other
insured causes. All other common area costs are the sole responsibility of the
Lessor. The Premises, taking into account both the building and the storage
area, constitute approximately 3.2% of the Park. It is, therefore, agreed that
the taxes, assessments and insurance premiums ("TAIP") applicable to the
Premises is 3.2% of the total TAIP applicable to the Park. In the event that
there is a material change in the Park, either in land area or in improvements
such that the Premises is significantly different from 3.2% of the Park, there
will be an equitable adjustment in the Lessee's percentage.
Commencing with the month of January, 1997, the Lessee will pay as additional
rent, monthly, at the same time as base rent, if any, is due, an amount equal
to 1/12th of 3.2% of the amount by which the TAIP for the current year exceeds
the amount of the TAIP for the year 1996, when it was $638,679-00.
Inasmuch as the TAIP for any given year will not be fully known as of January 1
of such year, the Lessee will continue to pay at the prior year's rate,
adjusted to the extent that the amounts that make up the TAIP for the current
year are known. At such time as all amounts that make up the TAIP for the
current year are known the monthly payment on account of TAIP will be changed
and a further payment, or refund, as the case may be, will be made to
compensate for any shortage or overage in the added rent paid in the preceding
months. If there is a refund due it will be sent with the notice of the new
TAIP amount. If there is a further amount owed it will be paid along with the
next monthly rent.
28.2 Lessee's Taxes. Lessee shall pay all personal property taxes
imposed on Lessee's fixtures and equipment and all other taxes, installments of
assessments (amortized over the longest permissible time), except general
property taxes and assessments, levies, licenses and permit fees, utility
hook-up fees and facility charges, and other governmental charges and
impositions of any kind and nature whatsoever, together with any interest or
penalties attributable to tenant's failure to pay the same when due, which at
any time during the term of this Lease may be assessed, levied or become due
and payable out of, or in respect of, the Premises or Lessee's use thereof, or
become a lien on the Premises, including, without limitation, any sales tax,
business and occupation tax, excise tax or similar tax or imposition imposed
upon rent or Lessor's business of leasing property, and the cost of compliance
with any governmental requirements or regulations relating the Lessee's use of
the Premises or the utility services thereto, or the conduct of Lessee's
business (collectively, the "Impositions"); provided, however, Lessee shall not
be obligated to pay Lessor's net income taxes or any transfer or excise tax
imposed upon the conveyance of the Premises, or business and occupation taxes
imposed
upon Lessor's business activities other than leasing property. Impositions
shall be paid by Lessee when due if billed directly to Lessee, and within 30
days of receipt of billing by Lessor if such Impositions are billed to the
Lessor.
29. Non-waiver of Breach. The waiving of any of the covenants of this Lease by
either party shall be limited to the particular instance and shall not be
deemed to waive any other breaches of such covenants. The consent by Lessor to
any act by Lessee requiring Lessor's consent shall not be deemed to waive
consent to any subsequent similar act by Lessee. The failure of the Lessor to
insist upon strict performance of the covenants and agreements of this Lease,
shall not be construed to be a waiver or relinquishment of any such covenants
or agreements, but the same shall remain in full force and effect.
30. Default. If Lessee should fail to remedy any default (a) in the payment of
any sum due under this Lease within ten days after notice, or (b) in the
keeping of any other term, covenant or condition herein with all reasonable
dispatch, within 20 days after notice, then in any of such events, Lessor shall
have the right, at its option, in addition to, and not exclusive of, any other
remedy Lessor may have by operation of law, without further demand or notice,
to re-enter the Premises and eject all persons therefrom, using all necessary
force so to do, and either (i) declare this Lease at an end, in which event
Lessee shall immediately pay to Lessor a sum of money equal to the amount, if
any, by which the value of the rent reserved hereunder for the balance of the
term of this Lease, discounted to present value at 8% per annurn, exceeds the
then reasonable rental value of the Premises for the balance of said term,
discounted in like manner, net of all costs incident to reletting the Premises,
or (ii) without terminating this Lease may relet the Premises, or any part
thereof, as the agent and for the account of Lessee upon such terms and
conditions as Lessor may deem advisable, in which event the rents received on
such reletting shall be applied first to the expenses of such re-letting,
including without limitation necessary renovation and alterations of the
Premises, reasonable attorney fees, real estate commissions paid, and
thereafter toward payment of all sums due or to become due Lessor hereunder,
and if a sufficient sum shall not be thus realized to pay such sums and other
charges, Lessee shall pay Lessor any deficiency monthly, notwithstanding Lessor
may have received rental in excess of the rental stipulated in this Lease in
previous or subsequent months, and Lessor may bring an action therefore as such
monthly deficiencies shall arise.
31. Litigation Costs/Venue. If any legal action is instituted to enforce or
construe this Lease, or any part thereof, the prevailing party shall be
entitled to recover reasonable attorney fees and expenses. If any legal fees
are incurred by Lessor relative to the enforcement of any term of this Lease,
with or without suit, Lessee shall be liable to Lessor for said fees and shall,
within ten days of demand by Lessor therefor, pay the same to Lessor. Venue of
any legal action brought hereunder shall be Spokane County, State of
Washington.
32. Removal of Personal Property by Lessee. Lessee shall have the right to
remove all of its personal property, trade fixtures, and office equipment,
whether or not attached to the Premises, provided that such may be removed
without serious damage to the Premises. All damage to the Premises caused by
removal of such items shall be promptly restored or repaired
by Lessee. M property not so removed as of the termination of this Lease
shall be deemed abandoned by Lessee.
33. Removal of Property by Lessor. If Lessor lawfully re-enters or takes
possession of the Premises prior to the stated expiration of this Lease, Lessor
shall have the right, but not the obligation, to remove from the Premises all
personal property located therein and may place the same in storage in a public
warehouse at the expense and risk of Lessee, and shall have the right to sell
such stored property, without notice to Lessee, after it has been stored for a
period of 30 days or more, the proceeds of such sale to be applied first to the
cost of such sale, second to the payment of the charges for storage, if any,
and third to the payment of any other sums which may then be due from Lessee to
Lessor under any of the terms hereof, the balance, if any, to be paid to the
Lessee.
34. Loading Platforms. The Lessee shall maintain all loading platforms
attached to Building #7.
35. Insolvency. If Lessee becomes insolvent, voluntarily or involuntarily
bankrupt, or if a receiver, assignee, or other liquidating officer is appointed
for the business of Lessee, then Lessor may cancel this Lease at its option.
36. Assignments and Subletting.
36.1 Consent Required. The Lessee shall not assign this lease, or any
interest therein, or sublet the Premises, or any part thereof, or allow, permit
or suffer any other entity to use or occupy any part of the Premises without
the prior written consent of the Lessor.
36.2 Change in Lessee Ownership. Lessee being a corporation, any
change in the ownership or voting power of the Lessee which cumulatively
amounts to more than 40%, whether in a single transaction or in a series of
transactions, or which results in a transfer of the control of the Lessee,
shall constitute an assignment requiring the Lessor's prior written consent;
provided that changes in ownership which occur in the ordinary course of the
conduct of the ESOP will not trigger the application of this paragraph, and
provided further, that any other change in ownership which would otherwise
trigger the application of this paragraph shall be submitted to Lessor for
waiver of this paragraph, such waiver not to be unreasonably withheld or
delayed.
36.3 Request for Consent. If at any time the Lessee desires to assign
or sublet this lease in whole or in part, the Lessee shall submit a written
request to the Lessor, including with the request, the identification of the
proposed assignee or sublessee, a history of its prior operations, a
description of its proposed operations, audited financial statements for its
most recently completed fiscal period and a statement of the terms upon which
the assignment or the subletting is proposed to be made. The Lessee will
promptly, on request, submit to the Lessor such further documentation relative
to the proposed assignment or sublease as the Lessor may request.
36.4 Reimbursement of Costs. The Lessee will reimburse the Lessor for
all costs and expenses reasonably incurred by the Lessor in evaluating the
proposed assignment or subletting.
36.5 Withholding Consent. The Lessor may withhold its consent on any
of the following bases: If the liquidity and/or net worth and/or profitability
of the proposed assignee or sublessee is materially less than that of the
Lessee; if the proposed use by the assignee or sublessee would, in the Lessor's
reasonable judgment, have an adverse effect on the Park; if the proposed
assignee's or sublessee's history as a tenant is, in the reasonable judgment of
the Lessor, unsatisfactory; if any other reason exists which the Lessor, in its
reasonable judgment, deems to be sufficient. Consent otherwise shall not be
unreasonably withheld or delayed.
36.6 Conditions of Consent. If consent to the assignment or subletting
is granted, it may be granted on such reasonable conditions as the Lessor may
deem appropriate in light of all of the circumstances, including the proposed
use by the assignee or sublessee, and any change in conditions since the
commencement of this lease. The conditions may include a reasonable additional
charge for administrative services of the Lessor incident to the transaction.
36.7 Increased Rent Shared. If the assignee or sublessee would pay
more for the Premises which it has proposed to occupy than is being paid by the
Lessee, or if the proposed assignee or sublessee is paying any consideration to
the Lessee for the assignment or subletting, then 50% of any such payment shall
be paid to the Lessor as additional rent.
36.8 Submit Documents. All documents incident to the proposed
transaction will be submitted to the Lessor in their proposed form and shall be
subject to the Lessor's approval. If approval is given, then, promptly
following their execution, copies of all such executed documents of assignment
or subletting, or incident thereto, shall be furnished to the Lessor.
36.9 Assignee Bound. Any assignee or sublessee shall be subject to all
of the terms and conditions of this lease, including without limitation, those
terms and conditions applicable to assignment or subletting, provided that the
assignment or sublease may be canceled or terminated, but not otherwise
modified, without the consent of the Lessor, but, in any such event, the Lessor
shall be promptly notified of the cancellation or termination and provided with
copies of all documents incident thereto.
36. 10 Lessee Remains Obligated. No assignment or subletting shall, to any
extent, impair, limit or qualify the continuing obligation of the Lessee to
perform all of the obligations of the Lessee under this lease, all the same as
if the assignment or subletting had not taken place.
36.11 Additional Notice. If so requested by the Lessee, or included in
the documents of assignment or subletting, and that provision is specifically
called to the attention of the Lessor by written notice, the Lessor will give
to the assignee or sublessee any notice that it gives to the Lessee, but if
such provision is included, then, on that account, the monthly rent may be
increased by a reasonable amount to defray the Lessor's additional
administrative costs.
36.12 Joint Liability. In the event of any default under the lease
which in any way relates to the assignment or subletting, the Lessee and the
assignee or sublessee shall be jointly and severally obligated to the Lessor to
remedy the default and to pay any damages that the Lessor may sustain on
account of the default.
36.13 Default. Any purported assignment or subletting in whole or in
part, without full compliance with this paragraph 36, shall constitute a
default under this lease and shall vest no rights in the purported assignee or
sublessee.
37. Statements by Lessee. Lessee agrees at any time and from time to time, upon
not less than ten days' prior request by Lessor, to execute, acknowledge and
deliver to Lessor a statement in writing (Estoppel Certificates), 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 base rent and additional
rent have been paid in advance, if any, it being intended that any such
statement delivered. pursuant to this paragraph may be relied upon by any
existing or prospective purchaser, mortgagee, or assignee of the Premises or
the Park.
38. Subordination. Lessee, upon request of Lessor, will subordinate this Lease
to any mortgage, deed of trust, or other security interest (mortgage) which now
or hereafter affects the Premises, and to any renewals, modifications or
extensions of such mortgage. Lessee will execute and deliver, at Lessor's
expense, such instruments thus subordinating this Lease or evidencing such
subordination; provided, however, Lessor shall deliver or cause to be delivered
to Lessee an agreement in writing from any such mortgagee to the effect that so
long as Lessee shall faithfully discharge its obligations under this Lease, its
tenancy will not be disturbed nor this Lease affected by any default of such
mortgage, and that in the event of a sale of the Premises in foreclosure or any
sale, transfer or conveyance in lieu thereof, that same will be sold,
transferred or conveyed subject to this Lease.
39. Short Form Lease. Each party agrees to execute upon request of the
other a short form lease for the purpose of recordation. Each party agrees to
re-execute this Lease at any time upon the request of the other.
40. Miscellaneous.
40.1 Use of Terms. Whenever the singular number is used in this Lease
and whenever required by the context, the same shall include the plural, and
the masculine gender shall include the feminine and neuter genders, and the
word "person" shall include corporation, firm or association or other entity.
If there be more than one lessee, the obligations hereunder imposed upon Lessee
shall be joint and several.
40.2 Entire Agreement/Modifications. This instrument contains all of the
agreements and conditions made between the parties hereto and may not be
modified orally or in any other
manner than by an agreement in writing signed by all of the parties hereto or
their respective successors in interest.
40.3 Time of the Essence. Time is and shall be of the essence of each term
and provision of this Lease.
40.4. Heirs and Successors. All the covenants, agreements, provisions, and
conditions of this Lease shall inure to the benefit of and be binding upon the
parties hereto, their successors, heirs, executors, administrators and assigns.
40.5. Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any of the provisions hereof.
40.6. No Other Agreements. The parties acknowledge that no representation
or condition or agreements varying or adding to this Lease have been made either
orally or in writing.
40.7. Notices. All notices and demands required or allowed to be given
hereunder shall be in writing and sent by registered or certified mail, return
receipt requested, or hand delivered and receipted for, to the respective
parties at the following addresses, or at such other address that either party
may designate by notice in writing:
Lessor: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇-▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lessee: P. 0. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
41. Riders. The riders or exhibits, if any, attached to this Lease are made
part hereof by reference.
42. Environmental Considerations. As used in this lease, the term "Hazardous
Substance" shall mean any substance, chemical or waste, including petroleum
products or radioactive substances, that is now or shall hereafter be listed,
defined or regulated as hazardous, toxic or dangerous under any applicable
Environmental Laws.
As used in this lease, "Environmental Law" shall mean any federal,
state, or local laws, ordinances, rules, regulation and requirements now or
hereafter enacted or adopted (including without limitation, consent decrees and
administrative orders) relating to the generation, use, manufacture, treatment,
transportation, storage, disposal, or release of any Hazardous Substance.
Lessee shall not, without prior written notice to Lessor, engage in or
allow the generation, use, manufacture, treatment, transportation, storage,
investigation, testing, release or disposal of any Hazardous Substance in, on,
under or adjacent to the Premises. Lessee shall ensure that at all times Lessor
has true, complete and accurate information regarding any of Lessee's
activities on the Premises involving Hazardous Substances. Lessee shall provide
Lessor with (a) a description of any processes or activities involving the use
of Hazardous Substances to be conducted by Lessee on the Premises, (b) a
description (by type and amount) of any Hazardous Substances Lessee plans to
generate, use, manufacture, transport, store or dispose of in connection with
its use of the Premises, and (c) a description of techniques and management
practices to be utilized by Lessee to reduce the amount of Hazardous Substances
used and/or generated, to prevent release of Hazardous Substances to the
environment and to ensure the proper handling labeling, use and disposal of
Hazardous Substances used by Lessee on the Premises. Lessee shall notify Lessor
prior to any material changes in such processes, activities, type and amount of
Hazardous Substances and/or techniques and management practices and in any
event, Lessee shall report to Lessor at least once yearly regarding any such
processes, activities, Hazardous Substances, techniques, and management
practices. Lessee shall contemporaneously provide Lessor with copies of all
reports, listings or other information required by any governmental entity
relating to any Hazardous Substances utilized by Lessee, and shall promptly
provide any other information related to Lessee's utilization of Hazardous
Substances as Lessor may reasonably request.
Lessee shall not engage in or allow the unlawful release (from
underground tanks or otherwise) of any Hazardous Substance in, on, under or
adjacent to the property (including air, surface water and ground water on, in,
under or adjacent to the property). Lessee, with respect to the Premises, shall
at all times, and shall cause its employees, agents and contractors at all
times, to be in compliance with all Environmental Laws with respect to any
Hazardous Substances and shall handle all Hazardous Substances in compliance
with applicable Environmental Law and good industry standards and management
practices.
Lessee shall promptly notify Lessor, in writing, if Lessee has, or
acquires, notice or knowledge that any Hazardous Substance has been, or is
threatened to be, released, discharged or disposed of, on, in, under or from
the Premises. Lessee shall immediately take such action as is necessary to
report to governmental agencies as required by applicable law and to detain the
spread of and remove, to the satisfaction of Lessor and any governmental agency
having jurisdiction, any Hazardous Substances released, discharged or disposed
of as the result of, or in any way connected with, Lessee's activities on the
Premises and which is now, or is hereafter determined to be, unlawful or
subject to Environmental Laws and/or governmentally imposed remedial
requirements. Lessee shall immediately notify Lessor and provide copies upon
receipt of all written complaints, claims, citations, demands, inquiries,
reports or notices relating to the condition of the Premises or compliance with
Environmental Laws. Lessee shall promptly cure and have dismissed with
prejudice any such actions or proceedings in any way connected with Lessee's
activities on the Premises, to the reasonable satisfaction of Lessor, and
Lessee shall keep the Premises free of any lien imposed pursuant to any
Environmental Law. Lessor shall have the right at all reasonable times, and
from time to time, to conduct environmental audits of the Premises (including
sampling, testing, monitoring and accessing environmental records required by
applicable law) by a consultant of Lessor's choosing, and Lessee shall
cooperate with the conduct of such audits. If any violation of any
Environmental Law by Lessee or any violation of Lessee's obligations under this
paragraph are discovered, in addition to any
other
right Lessor may have, the costs incident to such audit, including the fees and
expenses of such consultant, shall be paid by Lessee to Lessor on demand as
additional rent.
Lessee shall at all times maintain an employee or consultant familiar
with Environmental Laws and charged with responsibility for Lessee's compliance
with all Environmental Laws and shall advise Lessor of the name, address and
phone number of such employee or consultant. Lessee shall implement a system to
review Lessee's Hazardous Substance activities on a regular basis and shall in
good faith (consistent with sound business practices) implement and maintain
best management practices to minimize the hazards posed by materials utilized
by Lessee, for example, by reducing the amounts of Hazardous Substances used
and disposed of, by utilizing less dangerous or less toxic materials or by
implementing programs to ensure the safe and proper handling, labeling, use and
disposal of Hazardous Substances.
Each year, between January 1 and March 31, Lessee shall conduct a self
environmental audit of Lessee's operations, regulatory compliance status, and
the Premises utilizing Lessor's standard format and checklists. Lessee shall
present the results of the environmental audit, and proposed operational
changes to address any audit deficiencies, to Lessor in writing within six
weeks after conducting the audit.
Prior to its vacation of the Premises, in addition to all other
requirements under this lease, Lessee shall remove any Hazardous Substances
placed on the Premises during the term of this lease or Lessee's possession of
the Premises, and shall demonstrate such removal to the Lessor's reasonable
satisfaction.
Lessee's obligations under this paragraph with respect to any
occurrence during the term of this lease shall survive any termination or
expiration of this lease.
Lessee is solely responsible for all costs and expenses related to the
clean up, remediation or monitoring of Hazardous Substances on the Premises or
any other properties which become contaminated with Hazardous Substances as a
result of activities on, or the contamination of, the Premises during the term
of this lease or any extension, renewal or holding over.
Lessee's obligations are unconditional and shall survive and continue
in effect after the termination of the lease or the transfer of the Premises
voluntarily or involuntarily, to the Lessor or others.
Lessor shall, at the inception of this Lease, advise Lessee in writing
as to the present condition of the Premises vis-a-vis hazardous substances
according to the best knowledge, information and belief of Lessor.
43. Brokers and Finders. Neither party has had any contact or dealings
regarding the Premises, or any communication in connection with the subject
matter of this Lease, through any real estate broker or other person who is
entitled to claim a commission or finder's fee in connection with the Lease
contemplated hereby. In the event that any broker or finder makes
a claim for a commission *or finder's fee based upon, or alleged to be based
upon, any such contract, dealings or communication, the party through whom the
broker or finder makes its claim shall be responsible for, and shall indemnify,
defend and hold harmless the other party from, such claim for commission or fee
or allegation thereof and all costs and expenses (including reasonable attorney
fees) incurred by the other party in defending against the same.
44. Arbitration. In the event that a dispute should arise under this lease, as
a condition precedent to suit, the dispute shall be submitted to arbitration in
the following manner: The party seeking arbitration shall submit to the other
party a statement of the issue(s) to be arbitrated and shall designate such
party's nominated arbitrator. The responding party shall respond with any
additional or counter statement of the issue(s), to be arbitrated and shall
designate the responding party's arbitrator, all within fourteen (14) days
after receipt of the initial notice. The two arbitrators thus nominated shall
proceed promptly, and in any event within ten days, to select a third
arbitrator. The arbitrators shall, as promptly as the circumstances allow and
within a time established by a majority vote of the arbitrators, conduct a
hearing on the issues submitted to them, and shall render their decision in
writing. Any decision as to procedure or substance made by a majority of the
arbitration panel shall be binding. A decision by a majority of the arbitrators
on any issue submitted shall be the decision of the arbitration panel as to
that issue. The arbitrators have authority to award costs and attorney fees to
either party in accordance with the merits and good faith of the positions
asserted by the parties. In lieu of appointing three arbitrators in the manner
set forth above, the parties may, by agreement, designate a single arbitrator.
Except as provided herein the arbitration proceedings shall be conducted in
accordance with the rules of the American Arbitration Association and the
statutes of the State of Washington pertaining to binding arbitration.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and
year first above written.
LESSEE: LESSOR:
CXT INCORPORATED CROWN WEST REALTY, L.L.C.
a Delaware corporation
By: ______________________ By: ___________________________
▇▇▇▇ ▇. ▇▇▇▇▇, President & CEO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
STATE OF WASHINGTON
) ss.
County of Spokane
On this day 30th day of December, 1996, personally appeared ▇▇▇▇ ▇. ▇▇▇▇▇ to me
known to be the President and CEO of CXT INCORPORATED, 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 the said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Name Printed: March ▇▇▇▇▇
-----------
NOTARY PUBLIC in and for the State
-
of Washington, residing at Spokane.
My Commission Expires: ▇/▇/▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇.
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇ this 30th day of December, 1996, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, to
me known to be the President of CROWN WEST REALTY, L.L.C., the limited
liability company that executed the within and foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of
said company, for the uses and purposes therein mentioned, and on oath stated
that he was authorized to execute the said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Name Printed: March ▇▇▇▇▇
NOTARY PUBLIC in and for the State
-
of Washington, residing at Spokane.
My Commission Expires: 8/1/98