Exhibit 10.13
[LOGO]
November 19, 1997
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Home Mortgage U.S.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇:
For your records, this letter acknowledges that upon my receipt of the
deposit amount for the additional space, $3,945.67, due and payable on
December 1, 1997, your total deposit will be $23,424.34.
Sincerely,
/s/ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
LEASE ADDENDUM "A"
Washington Mortgage Services
In addition to the existing lease dated February 18, 1997, for the premises
located at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇, effective December 1,
1997, the rentable premise space as indicated by the attached floor plan,
will increase by approximately 3,382 sq. ft. The total monthly base rental
rate for this space will be $3,945.67 per month. Deposit to be increased
$3,945.67.
The date and amount of the rent and expense increase will follow the terms of
and run concurrently with the original lease.
Landlord: All Services West Campus Tenant: Washington Mortgage Svcs
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its: Its: President
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11/13/97 11/13/97
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Date Date
OFFICE BUILDING LEASE
This Lease between All Service West Campus & Washington General Partnership
("Landlord") and Washington Mortgage Svcs Inc., a Washington Corporation
("Tenant"), Is dated January 18th, 1997.
1. LEASE ON PREMISES
In consideration of the Rent (as defined at Section 5.4) and the provisions
of this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as Exhibit
"A," and further described at Section 21. The Premises are located within the
Building and Project described in Section 2a. Tenant shall have the
non-exclusive right (unless otherwise provided herein) in common with
Landlord, other Tenants, Subtenants and invitees, to use of the Common Areas
(as defined at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
a. BASE RENT: $ 112,000 ($14.00) per [ILLEGIBLE]_________[/s/ INITIALS]
b. BASE YEAR: The calendar year of N/A c. Broker(s) and Sales Agent(s):
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ d. Commencement Date:
February 18th, 1997 e. Common Areas: The building lobbies,
common corridors and hallways, restrooms, garage and parking areas,
stairways, elevators and other generally understood public or common areas.
Landlord shall have the right to regulate the use of the Common Areas.
f. Expense Stop: fill in it applicable): $ N/A
g. Expiration Date: February 28th, 1999, unless otherwise sooner terminated in
accordance with the provisions of this Lease.
h. Index (Section 5.2): United State Department of Labor, Bureau of Labor
Statistics Consumer Price Index for All Urban Consumers, U.S. Average,
Subgroup "All Items" (1987 = 100).
i. Landlord's Mailing Address: ▇▇▇▇▇ ▇▇▇ ▇▇▇., ▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
j. Tenant's Mailing Address: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
k. Monthly Installments of Base Rent: $ 9,333.33 per month.
l. Parking: Tenant shall be permitted, upon payment of the then prevailing
monthly rate (as set by Landlord from time to time) to park -0- cars on
a non-exclusive basis in the area(s) designated by Landlord lot parking.
Tenant shall abide by any and all parking regulations and rules established
from time to time by Landlord or Landlord's parking operator. Landlord
reserves the right to separately charge ▇▇▇▇▇▇'s guests and visitors for
parking.
m. Premises: That portion of the Building containing approximately 8,000
square feet of rentable area, actual sq. footage to be verified by Landlord &
Tenant /s/ [INITIALS] shown by diagonal lines on Exhibit "A", located
on the 2ND floor of the Building and known as Suite_________.
n. Project: The building of which the Premises are a part (the "Building")
and any other buildings or improvements on the real property (the "Property")
located at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ and further described at Exhibit "D".
The Project is Known as Omni Building
o. Rentable Area: As to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to lease by
▇▇▇▇▇▇ and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
p. Security Deposit (Article 7): $ 9,333.33
q. State: The State of Washington
r. Tenant's First Adjustment Date (Section 5.2): the first day of the
calendar month following the Commencement date plus 12 months.
s. Tenant's Proportionate Share: N/A%. Such share is a fraction, the
numerator of which is the Rentable Area of the Premises, and the denominator
of which is the Rentable Area of the Project, as determined by Landlord from
time to time. The Project consists of 1 building(s) containing a total
Rentable Area of 39,835 square feet.
t. Tenants Use Clause (Article 8): Business use only
u. Term: The period commencing on the Commencement Date and expiring at midnight
on the Expiration Date.
3. EXHIBITS AND ADDENDA
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
Exhibit "A" - Floor Plan showing the Premises
Exhibit "B" - Site Plan of the Project [LINED OUT]
Exhibit "C" - Building Standard Work Letter [LINED OUT]
Exhibit "D" - Rules and Regulations
Exhibit "E" - Guarantee
Addenda:
i
4. DELIVERY OF POSSESSION
If any reason Landlord does not deliver possession of the Premises to Tenant
on the Commencement Date, Landlord shall not be subject to any liability for
such failure, the Expiration Date shall not change and the validity of this
Lease shall not be impaired, but Rent shall be abated until delivery of
possession, "Delivery of possession" shall be deemed to occur on the date
Landlord completes Landlord's Work as defined in Exhibit "C." If Landlord
permits Tenants to enter into possession of the Premises before the
Commencement Date, such possession shall be subject to the provisions of this
Lease, including, without limitation, the payment of Rent.
5. RENT:
1. Payment of Base Rent. ▇▇▇▇▇▇ agrees to pay the Base Rent for the Premises.
Monthly Installments of Base Rent shall be payable in advance on the first
day of each calendar month of the Term. If the Term begins (or ends) other
than the first (or last) day of a calendar month, the Base Rent for the
partial month shall be prorated on a per diem basis: Tenant shall pay
Landlord the first Monthly Installment of Base Rent when Tenant executes the
Lease.
6. INTEREST AND LATE CHANGES
If Tenant fails to pay when due any Rent or other amounts or charges which
Tenant is obligated to pay under the terms of this Lease, the unpaid amounts
shall bear interest at the maximum rate then allowed by law. Tenant
acknowledges that the late payment of any Monthly Installment of Base Rent
will cause Landlord to lose the use of that money and incur costs and
expenses not contemplated under this Lease, including without limitation,
administrative and collection costs and processing and accounting expenses,
the exact amount of which is extremely difficult to ascertain. Therefore, in
addition to interest, if any such installment is not received by Landlord
within ten (10) days from the date it is due, Tenant shall pay Landlord a
late charge equal to 5% of such installment. Landlord and Tenant agree that
this late charge represents reasonable estimate of such costs and expenses
and is fair compensation to Landlord for the loss suffered from such
nonpayment by ▇▇▇▇▇▇. Acceptance of any interest or late charge shall not
constitute a waiver of Tenant's default with respect to such nonpayment by
Tenant nor prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease.
7. SECURITY DEPOSIT
▇▇▇▇▇▇ agrees to deposit with Landlord the Security Deposit set forth at
Section 2 upon execution of this Lease, as security for ▇▇▇▇▇▇'s faithful
performance of its obligations under this Lease. Landlord and Tenant agree
that the Security Deposit may be commingled with funds of Landlord and
Landlord shall have no obligation or liability for payment of interest on
such deposit. Tenant shall not mortgage, assign, transfer or encumber the
Security Deposit without the prior written consent of Landlord and any
attempt by Tenant to do so shall be void, without force or effect and shall
not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable under
this Lease, or fails to perform any of the terms hereof, Landlord may
appropriate and apply or use all or any portion of the Security Deposit for
Rent payments or any other amount then due and unpaid, for payment of any
amount for which Landlord has become obligated as a result of Tenant's
default or breach, and for any loss or damage sustained by Landlord as a
result of Tenant's default or breach, and Landlord may so apply or use this
deposit without prejudice to any other remedy. Landlord may have by reason of
▇▇▇▇▇▇'s default or breach. If Landlord so uses any of the Security Deposit,
Tenant shall, within ten (10) days after written demand therefor, restore the
Security Deposit to the full amount originally deposited; Tenant's failure to
do so shall constitute an act of default hereunder and Landlord shall have
the right to exercise any remedy provided for at Article 27 hereof. Within
fifteen (15) days after the Term (or any extension thereof) has expired or
Tenant has vacated the Premises, whichever shall last occur, and provided
Tenant is not then in default on any of its obligations hereunder, Landlord
shall return the Security Deposit to Tenant, or if Tenant has assigned its
interest under this Lease, to the last assignee of Tenant. If Landlord sells
its interest in the Premises, Landlord may deliver this deposit to the
purchaser of Landlord's Interest and thereupon be relieved of any further
liability or obligation with respect to the Security Deposit.
8. TENANT'S USE OF THE PREMISES
Tenants shall use the Premises solely for the purposes set forth in Tenant's
Use Clause. Tenant shall not use or occupy the Premises in violation of law
or any covenant, condition or restriction affecting the Building or Project
or the certificate of occupancy issued for the Building or Project, and
shall, upon notice from Landlord, immediately discontinue any use of the
Premises which is declared by any governmental authority having jurisdiction
to be a violation of law or the certificate of occupancy. Tenant, at Tenant's
own cost and expense, shall comply with all laws, ordinances, regulations,
rules, and/or any directions of any governmental agencies or authorities
having jurisdiction which shall, by reason of the nature of Tenant's use or
occupancy of the Premises, impose any duty upon such laws, ordinances,
regulations, rules and/or directions of any governmental agencies or
authorities having jurisdiction which shall, by reason of the nature of
Tenant's use or occupancy of the Premises, impose any duty upon Tenant or
Landlord with respect to the Premises or it's use or occupation. If judgment
of any court of competent jurisdiction or the admission by Tenant in any
action or proceeding against Tenant has violated any such laws, ordinances,
regulations, rules and/or directions so the use of the Premises shall be
deemed to be a conclusive determination of that fact as between Landlord and
Tenant. Tenant shall not do or permit to be done anything which will
invalidate or increase the cost of any fire, extended coverage or other
insurance policy covering the Building or Project and/or property located
therein, and shall comply with all rules, orders, regulations, requirements
and recommendations of the Insurance Services Office or any other
organization performing a similar function. Tenant shall promptly upon demand
reimburse Landlord for any additional premium charged for such policy by
reason of ▇▇▇▇▇▇'s failure to comply with the provisions of this Article.
Tenant shall not do or permit anything to be done in or about the Premises
which will in any way obstruct or interfere with the rights of other Tenants
or occupants of the Building or Project, or injure or annoy them, or use or
allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any
nuisance in, on or about the Premises. Tenant shall not commit or suffer to
be committed any waste in or upon the Premises.
9. SERVICE AND UTILITIES
Provided that Tenant is not in default hereunder, Landlord agrees to furnish
to the Premises during generally recognized business days, and during hours
determined by Landlord in its sole discretion, and subject to the Rules and
Regulations of the Building or Project, electricity for normal desk top
office equipment and normal copying equipment, and heating, ventilation and
air conditioning (*HVAC*) as required in Landlord's judgment for the
comfortable use and occupancy of the Premises. If Tenant desires HVAC at any
other time, Landlord shall use reasonable efforts to furnish such service
upon reasonable notice from Tenant and Tenant shall pay Landlord's charges
therefor on demand. Landlord shall also maintain and keep lighted the common
stairs, common entries and restrooms in the Building. Landlord shall not be
in default hereunder or be liable for any damages directly or indirectly
resulting from, nor shall the Rent be abated by reason of (I) the
installation, use or interruption of use of any equipment in connection with
the furnishing of any of the foregoing services, (II) failure to furnish or
delay in furnishing any such services where such failure or delay is caused
by accident or any condition or event beyond the reasonable control of
Landlord, or by the making of necessary repairs or improvements to the
Premises, Building or Project, or (III) the limitation, curtailment, or
rationing of, or restrictions on, use of water, electricity, gas or any other
form of energy serving the Premises, Building or Project. Landlord shall not
be liable under any circumstances for a loss of or injury to property or
business, however occurring, through or in connection with or incidental to
failure to furnish any such services. If Tenant [ILLEGIBLE] machines or
equipment in the Premises which affect the temperature otherwise maintained
by the HVAC system,
Tenant shall not, without the written consent of Landlord, use any apparatus
or device in the Premises, including without limitation, electronic data
processing machines, punch card machines or machines using in excess of 120
volts, which consumes more electricity than is usually furnished or supplied
for the use of premises as general office space, as determined by Landlord,
Tenant shall not connect any apparatus with electric current except through
existing electrical outlets in the Premises. Tenant shall not consume water
or electric current in excess of that usually furnished or supplied for the
use of premises as general office space (as determined by Landlord), without
first procuring the written consent of Landlord, which Landlord may refuse,
and in the event of consent, Landlord may have installed a water meter or
electrical current meter in the Premises to measure the amount of water or
electric current consumed. The cost of any such meter and of its
installation, maintenance and repair shall be paid for by the Tenant and
▇▇▇▇▇▇ agrees to pay to Landlord promptly upon demand for all such water and
electric current consumed as shown by said meters, at the rates charged for
such services by the local public utility plus any additional expense
incurred in keeping account of the water and electric current so consumed. If
a separate meter is not installed, the excess cost for such water and
electric current shall be established by an estimate made by a utility
company or electrical engineer hired by Landlord at Tenant's expense.
Landlord shall furnish elevator service, lighting replacement for building
standard lights, restroom supplies, window washing and janitor services in a
manner that such services are customarily furnished to comparable office
buildings in the area.
10. CONDITION OF THE PREMISES
▇▇▇▇▇▇'s taking possession of the Premises shall be deemed conclusive
evidence that as of the date of taking possession the Premises are in good
order and satisfactory condition, except for such matters as to which Tenant
or Landlord notice on or before the Commencement Date. No promise of Landlord
to alter, remodel, repair or improve the Premises, the Building or the
Project and no representation, express or implied, respecting any matter or
thing relating to the Premises, Building, Project or this Lease (including,
without limitation, the condition of the Premises, the Building or the
Project) have been made to Tenant by Landlord or its Broker or Sales Agent,
other than as may be contained herein or in a separate exhibit or addendum
signed by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE
a. Landlord's Obligations. Landlord shall perform Landlord's Work to the
Premises as described in Exhibit "C", Landlord shall maintain in good order,
condition and repair the Building and all other portions of the Premises
which are not the obligation of Tenant or of any other tenant in the Building.
b. Tenant's Obligations
(1) Tenant shall perform Tenant's Work in the Premises as described in
Exhibit "C."
(2) Tenant at Tenant's sole expense shall, except for services furnished by
Landlord pursuant to Article 9 hereof, maintain the Premises in good order,
condition and repair, including the interior surfaces of the ceilings, walls
and floors, all doors, all interior windows, all plumbing, pipes and
fixtures, electrical wiring, switches and fixtures, electrical wiring,
switches and fixtures, Building Standard furnishings and special items and
equipment installed by or at the expense of Tenant.
(3) Tenant shall be responsible for all repairs and alterations in and to
the Premises, Building and Project and the facilities and systems thereof,
the need for which arises out of (I) Tenant's use or occupancy of the
Premises, (II) the installation, removal, use or operation of Tenant's
Property (as defined in Article 13) in the Premises, (III) the moving of
Tenant's Property into or out of the Building, or (IV) the act, omission,
misuse or negligence of Tenant, its agents, contractors, employees or
invitees.
(4) If Tenant fails to maintain the Premises in good order, condition and
repair, Landlord shall give Tenant notice to do such acts as are reasonable
required to so maintain the Premises. If Tenant fails to promptly commence
such acts and diligently prosecute it to completion, then Landlord shall have
the right to do such acts and expend such funds at the expense of Tenant as
are reasonably required to perform such work. Any amount so expended by
Landlord shall be paid by Tenant promptly after demand with interest at the
prime commercial rate then being charged by Bank of America NT & SA plus two
percent (2%) per annum, from the date of such work, but not to exceed the
maximum rate then allowed by law. Landlord shall have no liability to Tenant
for any damage, inconvenience, or interference with the use of the Premises
by ▇▇▇▇▇▇ as a result of performing any such work.
c. Compliance with Law. Landlord and Tenant shall each do all acts required
to comply with all applicable laws, ordinances and rules of any public
authority relating to their respective maintenance obligations as set forth
herein.
d. Waiver by ▇▇▇▇▇▇. Tenant expressly waives the benefits of any statute now
or hereafter in effect which would otherwise afford the Tenant the right to
make repairs at Landlord's expense or to terminate this Lease because of
Landlord's failure to keep the Premises in good order, condition and repair.
e. Load and Equipment Limits. Tenant shall not place a load upon any floor of
the Premises which exceeds, the load per square foot which such floor was
designed to carry, as determined by Landlord or Landlord's structural
engineer. The cost of any such determination made by ▇▇▇▇▇▇▇▇'s structural
engineer shall be paid for by Tenant upon demand. Tenant shall not install
business machines or mechanical equipment which cause noise or vibration to
such a degree as to be objectionable to Landlord or other Building tenants.
f. Except as otherwise expressly provided in this Lease, Landlord shall have
no liability to Tenant nor shall Tenant's obligations under this Lease be
reduced or abated in any manner whatsoever by reason of any inconvenience,
annoyance, interruption or injury to business arising from Landlord's making
any repairs or changes which Landlord is required or permitted
g. Tenant shall give Landlord prompt notice of any damage to or defective
condition in any part or appurtenance of the Building's mechanical,
electrical, plumbing, HVAC or other systems serving, located in, or passing
through the Premises.
h. Upon the expiration or earlier termination of this lease, Tenant shall
return the Premises to Landlord clean and in the same condition as on the
date Tenant took possession, except for normal wear and tear. Any damage to
the Premises, including any structural damage, resulting from ▇▇▇▇▇▇'s use or
from the removal of Tenant's fixtures, furnishings and equipment pursuant to
Section 13b shall be repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS
a. Tenant shall not make any additions, alterations or improvements to the
Premises without obtaining the prior written consent of Landlord. ▇▇▇▇▇▇▇▇'s
consent may be conditioned on ▇▇▇▇▇▇'s removing any such additions,
alterations or improvements upon the expiration of the term and restoring the
Premises to the same condition as on the date Tenant took possession. All
work with respect to any addition, alteration or improvement shall be done in
a good and workmanlike manner by properly qualified and licensed personnel
approved by Landlord, and such work shall be diligently prosecuted to
completion. Landlord may, at ▇▇▇▇▇▇▇▇'s option require that any such work be
performed by ▇▇▇▇▇▇▇▇'s contractor, in which case the cost of such work shall
be paid for before commencement of the work. Tenant shall pay to Landlord
upon completion of any such work by ▇▇▇▇▇▇▇▇'s contractor, an administrative
fee of fifteen percent (15%) of the cost of the work.
b. Tenant shall pay the costs of any work done on the Premises pursuant to
Section 12a, and shall keep the Premises, Building and Project free and clear
of liens of any kind. Tenant shall indemnify, defend against and keep
Landlord free and harmless from all liability, loss, damage, costs,
attorneys' fees and any other expense incurred on account of claims by any
person performing work or furnishing materials or supplies for Tenant or any
person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions or
improvements which are or become the property of Landlord under this Lease,
free and clear of all attachment or judgment ▇▇▇▇▇. Before the actual
commencement of any work for which a claim or lien may be filed, Tenant shall
give Landlord notice of the intended commencement date a sufficient time
before that date to enable Landlord to post notices of nonresponsibility or
any other notices which Landlord deems necessary for the proper protection of
▇▇▇▇▇▇▇▇'s interest in the Premises, Building or the Project, and Landlord
shall have the right to enter the Premises and post such notices at any
reasonable time.
c. Landlord may require, at ▇▇▇▇▇▇▇▇'s sole option, that Tenant provide to
Landlord, at Tenant's expense, a lien and completion bond amount equal to at
lease one and one-half (1-1/2) times the total estimated cost of any
additions, alterations or improvements to be made in or to the Premises, to
protect Landlord against any liability for mechanics and materialmen's liens
and to insure timely completion of the work. Nothing contained in this
Section 12c shall relieve Tenant of its obligations under Section 12b to keep
the Premises, Building and Project free of all liens.
d. Unless their removal is required by Landlord as provided in Section 12a,
all additions, alterations and improvements make to the Premises shall become
the property of Landlord and be surrendered with the Premises upon the
expiration of the Term; provided, however, Tenant's equipment, machinery and
trade fixtures which can be removed without damage to the Premises shall
remain the property of Tenant and may be removed, subject to the provisions
of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY
a. All fixtures, equipment, improvements and appurtenances attached to or
built into the Premises at the commencement of or during the Term, whether or
not by or at the expense of Tenant ("Leasehold Improvements"), shall be and
remain a part of the Premises, shall be the property of Landlord and shall
not be removed by Tenant, except as expressly provided in Section 13b.
b. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense to
Landlord, which can be removed without structural damage to the Building, and
all furniture, furnishings and other articles of movable personal property
owned by Tenant and located in the Premises (collectively "Tenant's
Property") shall be and shall remain the property of Tenant and may be
removed by Tenant of any time during the Term; provided that if any of
Tenant's Property is removed, Tenant shall promptly repair any damage to the
Premises or to the Building resulting from such removal.
14. RULES AND REGULATIONS
Tenant agrees to comply with (and cause its agents, contractors, employees
and invitees to comply with the rules and regulations attached hereto as
Exhibit "D" and with such reasonable modifications thereof and additions
hereto as Landlord may from time to time make. Landlord shall not be
responsible for any violation of said rules and regulations by other tenants
or occupants of the Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD
Landlord reserves the following rights, exercisable without liability to
Tenant for (a) damage or injury to property, person or business, (b) causing
an actual or constructive eviction from the Premises, or (c) disturbing
Tenant's use or possession of the Premises:
a. To name the building and Project and to change the name or street
address of the Building or Project;
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding ▇▇▇▇▇▇'s vaults and safes;
d. At any time during the Term, and on reasonable prior notice to Tenant,
to inspect the Premises, and to show the Premises to any prospective
purchaser or mortgagee of the Project, or to any assignee of any mortgage on
the Project, or to others having an interest in the Project or Landlord, and
during the last six months of the term, to show the Premises to prospective
Tenants.
e. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or balancing
controls and other parts of the HVAC system), and to take all steps as may be
necessary or desirable for the safety, protection, maintenance or
preservation of the Premises or the Building or Landlord's interest therein,
or as may be necessary or desirable for the operation or improvement of the
Building or in order to comply with laws, orders or requirements of
governmental or other authority. Landlord agrees to use its best efforts
(except in an emergency) to minimize interference with ▇▇▇▇▇▇'s business in
the Premises in the course of any such entry.
16. ASSIGNMENT AND SUBLETTING
Assignment of this Lease or sublease of all or any part of the Premises shall
be permitted, except as provided for in Article 16.
a. Tenant shall not, without the prior written consent of Landlord, assign
or hypothecate this Lease or any interest herein or sublet the Premises or
any part thereof, or permit the use of the Premises by any party other than
Tenant. Any of the foregoing acts without such consent shall be void and
shall, at the option of Landlord, terminate this Lease. This lease shall not,
nor shall any interest of Tenant herein, be assignable by operation of law
without the written consent of Landlord.
b. If at any time or from time to time during the Term Tenant desires to
assign this Lease or sublet all or any part of the Premises, Tenant shall
give notice to landlord setting forth the terms and provisions of the
proposed assignment or sublease, and the identity of the proposed assignee or
subtenant. Tenant shall promptly supply Landlord with such information
concerning the business background and financial condition of such proposed
assignee or subtenant as Landlord may reasonably request. Landlord shall have
the option, exercisable by notice given to Tenant within twenty (20) days
after ▇▇▇▇▇▇'s notice is given, either to sublet such space from Tenant at
the rental and on the other terms set forth in this Lease of the term, set
forth in Tenant's notice, or, in the case of an assignment, to terminate this
Lease, If Landlord does not exercise such option, Tenant may assign the Lease
or sublet such space to such proposed assignee or subtenant on the following
further conditions:
(1) Landlord shall have the right to approve such proposed assignee or
subtenant, which approval shall not be unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set forth in the
notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or subleasee
shall take possession of the Premises until an executed counterpart of such
assignment or sublease has been delivered to Landlord;
(4) No assignee or subleasee shall have a further right to assign or sublet
expect on the terms herein contained; and
(5) Any sums or other economic consideration received by Tenant as a result
of such assignment or subletting, however denominated under the assignment or
sublease, which exceed, in the aggregate, (I) the total sums which Tenant is
obligated to pay Landlord under this Lease (prorated to reflect obligations
allocable to any portion of the Premises subleased), plus (II) any real
estate brokerage commissions or fees payable in connection with such
assignment or subletting, shall be paid to landlord as additional rent under
this Lease without affecting or reducing any other obligations of Tenant
hereunder.
c. Notwithstanding the provisions of paragraphs a and b above, Tenant may
assign this Lease or sublet the premises, or any portion thereof, without
Landlord's consent and without extending any recapture or termination option
to Landlord, to any corporation which controls, is controlled by or is under
common control with Tenant, or to any corporation resulting from a merger or
consolidation with Tenant, or to any person or entity which acquires all the
assets of Tenant's business as a going concern, provided that (I) the
assignee or subleasee assumes, in full, the obligations of Tenant under this
Lease, (II) Tenant remains fully liable under this Lease, and (III) the use
of the Premises under Article 0 remains unchanged.
d. No subletting or assignment shall release Tenant or Tenant's obligations
under this Lease or alter the primary liability of the Tenant to pay the Rent
and to perform all other obligations to be performed by Tenant hereunder. The
acceptance of Rent by Landlord from any other person shall not be deemed to
be a waiver by Landlord of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent assignment or
subletting. In the event of default by an assignee or subtenant of Tenant or
any successor of ▇▇▇▇▇▇ in the performance of any of the terms hereof,
Landlord may proceed directly against Tenant without the necessity of
exhausting remedies against such assignee, subtenant or successor. Landlord
may consent to subsequent assignments of the Lease or sublettings or
amendments or modifications to the Lease with assignees of Tenant, without
notifying Tenant, or any successor of Tenant, and without obtaining its or
their consent thereto and any such actions shall not relieve Tenant of
liability under this Lease.
e. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or it Tenant requests the
consent of Landlord for any act that Tenant proposes to do, then Tenant
shall, upon demand, pay Landlord an administrative fee of One Hundred Fifty
and No/100ths ($150.00) plus any attorneys fees reasonably incurred by
Landlord in connection with such act or request.
17. HOLDING OVER
If after expiration of the Term, or extentions hereof, Tenant remains in
possession of the Premises with Landlord's permission (express or implied),
Tenant shall become a Tenant from month to month only, upon all the
provisions of this lease (except to Term and Base Rent), but the "Monthly
Installments of Base Rent" payable by Tenant shall be increase to one hundred
fifty percent (150%) of the Monthly Installments of Base Rent payable by
Tenant at the expiration of a Term. Such monthly rent shall be payable in
advance on or before the first day of each month. If either party desires to
terminate such month to month tenancy, it shall give the other party not less
that thirty (30) days advance written notice of the date of termination.
18. SURRENDER OF PREMISES
A Tenant shall peaceably surrender the Premises to Landlord on the Expiration
Date, in broom-clean condition and in as good condition as which ▇▇▇▇▇▇ took
possession, except for (I) reasonable wear and tear, (II) loss by fire or
other casualty, and
b. If tenant abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the Premises
shall be deemed to be abandoned, and, at Landlord's option, title shall pass
to Landlord under this Lease as by a bill of sale. If Landlord elects to
remove all or any part of such Tenant's Property, the cost of removal,
including repairing any damage to the Premise or Building caused by such
removal, shall be paid by Tenant. On the Expiration Date Tenant shall
surrender all keys to the Premises.
19. DESTRUCTION OR DAMAGE
a. If the premises or the portion of the Building necessary for Tenant's
occupancy is damaged by fire, earthquake or other Acts of God, the elements
or other casualty, Landlord shall, subject to the provision of this Article,
promptly repair the damage. If such repairs can, in ▇▇▇▇▇▇▇▇'s opinion, be
completed within ninety (90) days. If Landlord determines that repairs can be
completed within ninety (90) days, this Lease shall remain in full force and
effect, except that if such damage is not the result of the negligence or
willful misconduct of Tenant or Tenant's agents, employees, contractors,
licensees or invitees, the Base Rent shall be abated to the extent Tenant's
use of the premises is impaired, commencing with the date of damage and
continuing until completion of the repairs required of Landlord under Section
10d.
b. If in Landlord's opinion, such repairs to the Premises or portion of the
Building necessary for Tenant's occupancy cannot be completed within ninety
(90) days, Landlord may elect, upon notice to Tenant given within thirty (30)
days after the date of such fire or other casualty, to repair such damage, in
which event this Lease shall continue in full force and effect, but the Base
Rent shall be partially abated as provided in Section 10a. If Landlord does
not so elect to make such repairs, this Lease shall terminate as of the date
of such fire or other casualty.
c. If any other portion of the Building or Project is totally destroyed or
damaged to the extent that in Landlord's opinion repair thereof cannot be
completed within ninety (90) days. Landlord may elect upon notice to Tenant
given within thirty (30) days after the date of such fire or other casualty,
to repair such damage. In which event this Lease shall continue in full force
and effect, but the Base Rent shall be partially abated as provided in Section
19a. If Landlord does not elect to make such repairs, this Lease shall
terminate as of the date of such fire or other casualty.
d. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building and Building Standard
work in the Premises. Tenant shall be responsible at its sole cost and
expense for the repair, restoration and replacement of any other Leasehold
improvements and Tenant's Property. Landlord shall not be liable for any loss
of business, inconvenience or annoyance arising from any repair or
restoration of any portion of the Premises, Building or Project as a result
of any damage from fire or other casualty.
e. This Lease shall be considered an express agreement governing any case of
damage to or destruction of the Premises, Building or Project by fire or
other casualty, and any present or future law which purports to govern the
rights of Landlord and Tenant in such circumstances in the absence of express
agreement, shall have no application.
20. EMINENT DOMAIN
a. If the whole of the Building or Premises is lawfully taken by condemnation
or in any other manner for any public or quasi-public purpose, this Lease
shall terminate as of the date of such taking, and Rent shall be prorated to
such date. If less than the whole of the Building or Premise is so taken,
this Lease shall be unaffected by such taking, provided that (I) Tenant shall
have the right to terminate this Lease by notice to Landlord given within
ninety (90) days after the date of such taking if twenty percent (20%) or
more of the Premises is taken and the remaining area of the Premises is not
reasonably sufficient for Tenant to continue operation of its business, and
(II) Landlord shall have the right to terminate this Lease by notice to
Tenant given within ninety (90) days after the date of such taking. If either
Landlord or Tenant so elects to terminate this Lease, the Lease shall
terminate on the thirtieth (30) day after either such notice. The Rent shall
be prorated to the date of termination. If this Lease continues in force upon
such partial taking, the Base Rent and ▇▇▇▇▇▇'s Proportionate Share shall be
equitably adjusted according to the remaining Rentable Area of the Premises
and Project.
b. In the event of any taking, partial or whole, all of the proceeds of any
award, judgment or settlement payable by the condemning authority shall be
the exclusive property of Landlord, and Tenant hereby assigns to Landlord all
of its right, title and interest in any award, judgment or settlement from
the condemning authority, Tenant, however, shall have the right, to the
extent that Landlord's award is not reduced or prejudiced, to claim from the
condemning authority (but not from Landlord) such compensation as may be
recoverable by Tenant in its own right for relocation expenses and damage to
▇▇▇▇▇▇'s personal property.
c. In the event of a partial taking of the Premises which does not result in
a termination of this Lease, Landlord shall restore the remaining portion of
the Premises as nearly as practicable to its condition prior to the
condemnation or taking, but only to the extent of Building Standard Work.
Tenant shall be responsible at its sole cost and expense for the repair,
restoration and replacement of any other Leasehold improvements and Tenant's
Property.
21. INDEMNIFICATION
a. Tenant shall indemnify and hold Landlord harmless against and from
liability and claims of any kind for loss or damage to property of tenant or
any other person, or for any injury to or death of any person, arising out
of: (1) Tenant's use and occupancy of the Premises, or any work, activity or
other things allowed or suffered by Tenant, to be done in; on or about the
Premises; (2) any breach or default by Tenant of any of Tenant's obligations
under this Lease; or (3) any negligent or otherwise tortious act or omission
of Tenant, its agents, employees, invitees or contractors. Tenant shall, at
Tenant's expense, and by counsel satisfactory to Landlord, defend Landlord in
any action or proceeding arising from any such claim and shall indemnify
Landlord against all costs, attorneys' fees, expert witness fees and any
other expenses incurred in such action or proceeding. As a material part of
the consideration for ▇▇▇▇▇▇▇▇'s execution of this Lease, ▇▇▇▇▇▇ hereby
assumes all risk of damage or injury to any person or property in, on or
about the Premises from any cause.
b. Landlord shall not be liable for injury or damage which may be sustained
by the person or property of Tenant, its employees, invitees or customers, or
any other person in or about the Premises, caused by or resulting from fire,
steam, electricity, gas, water or rain which may leak or flow from or into
any part of the Premises, or from the breakage, leakage, obstruction or other
defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning
or lighting fixtures, whether such damage or injury results from conditions
arising upon the Premises or upon other portions of the Building or Project
???.
22. TENANT'S INSURANCE
a. All insurance required to be carried by Tenant hereunder shall be issued
by responsible insurance companies acceptable to Landlord and Landlord's
lender and qualified to do business in the State. Each policy shall name
▇▇▇▇▇▇▇▇, and at ▇▇▇▇▇▇▇▇'s request any mortgagee of Landlord, as an
additional insured, as their respective interests may appear. Each policy
shall contain (I) a cross-liability endorsement, (II) a provision that such
policy and the coverage evidenced thereby shall be primary and
non-contributing with respect to any policies carried by Landlord and that
any coverage carried by Landlord shall be excess insurance, and (III) a
waiver by the insurer of any right of subrogation against Landlord, its
agents, employees and representatives, which arises or might arise by reason
of any payment under such policy or by reason of any act or omission of
Landlord, its agents, employees or representatives. A copy of each paid up
policy (authenticated by the insurer) or certificate of the insurer
evidencing the existence and amount of each insurance policy required
hereunder shall be delivered to Landlord before the date Tenant is first given
the right of possession of the Premises, and thereafter within thirty (30)
days after any demand by Landlord there for, Landlord may, at any time and
from time to time, inspect and/or copy any insurance policies required to be
maintained by Tenant hereunder. No such policy shall be cancellable except
after twenty (20) days written notice to Landlord and Landlord's Lender.
Tenant shall furnish Landlord with renewals or "binders" of any such policy
at least ten (10) days prior to the expiration thereof. Tenant agrees that if
▇▇▇▇▇▇ does not take out and maintain such insurance, Landlord may (but shall
not be required to) procure said insurance on Tenant's behalf and charge the
Tenant the premiums together with a twenty-five percent (25%) handling
charge, payable upon demand. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by the Tenant,
provided such blanket policies expressly afford coverage to the Premises,
Landlord, ▇▇▇▇▇▇▇▇'s mortgagee and Tenant as required by this Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect policies of casualty insurance covering (1)
all Leasehold improvements (including any alterations, additions or
improvements as may be made, by Tenant pursuant to the provisions of Article
12 hereof), and (II) trade fixtures, merchandise and other personal property
from time to time in, on or about the Premises, in an amount not less than
one hundred percent (100%) of their actual replacement cost from time to time,
providing protection against any peril included with the classification "Fire
and Extended Coverage" together with insurance against sprinkler damage,
vandalism and malicious mischief. The proceeds of such insurance shall be
used for the repair or replacement of the property so insured. Upon
termination of this Lease following a casualty as set forth herein, the
proceeds under (1) shall be paid to Landlord, and the proceeds under (II)
above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect workers compensation insurance as required by
law and comprehensive public liability and property damage insurance with
respect to the construction of improvements on the Premises, the use,
operation or condition of the Premises and the operations of Tenant in, on or
about the Premises, providing personal injury and broad form property damage
coverage for not less than One Million Dollars ($1,000,000.00) combined
single limit for bodily injury, death and property damage liability.
d. Not less than every three (3) years during the term, Landlord and Tenant
shall mutually agree to increases in all of Tenant's insurance policy limits
for all insurance to be carried by ▇▇▇▇▇▇ as set forth in this Article. In
the event Landlord and ▇▇▇▇▇▇ cannot mutually agree upon the amounts of said
increases, then ▇▇▇▇▇▇ agrees that all insurance; policy limits as set forth
in this article shall be adjusted for increases in the cost of living in the
same manner as is set forth in Section 5.2 hereof for the adjustment of the
Base Rent.
23. WAIVER OF SUBROGATION
Landlord and ▇▇▇▇▇▇ each hereby waive all rights of recovery against the
other and against the officers, employees, agents and representatives of the
other, on account of loss by or damage to the waiving party or its property
of the property of others under its control, to the extent that such loss or
damage is insured against under any fire and extended coverage insurance
policy which either may have in force at the time of the loss or damage.
Tenant shall upon obtaining the policies of insurance required under this
Lease, give notice to the insurance carrier or carriers that the foregoing
mutual waiver of subrogation is contained in this Lease.
24. SUBORDINATION AND ATTORNMENT
Upon written request of ▇▇▇▇▇▇▇▇, or any first mortgagee or first deed of
trust beneficiary of Landlord, or ground Lessor of Landlord, Tenant shall, in
writing, subordinate its rights under this Lease to the lien of any first
mortgage or first deed of trust, or to the interest of any lease in which
Landlord is leasee, and to all advances made or hereafter to be made
thereunder. However before signing any subordination agreement, Tenant shall
have to right to obtain from any lender or lessor of Landlord requesting such
subordination, an agreement in writing providing as long as Tenant is not in
default hereunder, this Lease shall remain in effect for the full Term. The
holder of security interest may, upon written notice to Tenant, elect to have
this Lease prior to its security interest regardless of the time of the
granting or recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord, its Lessee, Tenant may attorn to
the purchaser, transferee or Lessor as the case may be, and recognize that
party as Landlord under this Lease, provided such party acquires and accepts
the Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES
Within ten (10) days after written request from Landlord, Tenant shall
execute and deliver to Landlord or Landlord's designee, a written statement
certifying (a) that this Lease is unmodified and in full force and effect, or
is in full force and effect as modified and stating the modifications; (b)
the amount of Base Rent and the date to which Base Rent and additional rent
have been paid in advance; (c) the amount of any security deposited with
Landlord; and (d) that Landlord is not in default hereunder or, if ▇▇▇▇▇▇▇▇
is claimed to be in default, stating the nature of any claimed default. Any
such statement may be called upon by a purchaser, assignee or lender.
Tenant's failure to execute and deliver such statement within the time
required shall at Landlord's election be a default under this Lease and shall
also be conclusive upon ???
26. TRANSFER OR LANDLORD'S INTEREST
In the event of any sale or transfer by Landlord of the Premises, Building or
Project, and assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission relating to the Premises, Building, Project or Lease occurring after
the consummation of such sale or transfer, providing the purchaser shall
expressly assume all of the covenants and obligations of Landlord under this
Lease. If any security deposit or prepaid Rent has been paid by Tenant,
Landlord may transfer the security deposit or prepaid Rent to Landlord's
successor and upon such transfer, Landlord shall be relieved of any and all
further liability with respect thereto.
27. DEFAULT
27.1 TENANT'S DEFAULT. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant:
a. If Tenant abandons or vacates the Premises; or
b. If Tenant fails to pay any Rent or any other charges required to
be paid by Tenant under this Lease and such failure continues for five (10)
days after such payment is due and payable; or
c. If Tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease and so failure continues for
thirty (30) days after written notice thereof from Landlord to Tenant; or
d. If a writ of attachment or execution is levied on this Lease or on
any of Tenant's Property; or
e. If ▇▇▇▇▇▇ makes a general assignment for the benefit of creditors,
or provides for an arrangement, composition, extension or adjustment with
its creditors; or
f. If Tenant files a voluntary position for relief or if a petition
against Tenant is a proceeding under the federal bankruptcy laws or other
insolvency laws is filed and not withdrawn or dismissed within forty-five
(45) days hereafter, or if under the provisions of any law providing for
reorganization or winding up of corporations, any court of competent
jurisdiction assumes jurisdiction, custody or control of Tenant or any
substantial part of its property and such jurisdiction, custody or control
remains in force unrelinquished, unstayed or unterminated for a period of
forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a party, a
trustee, receiver, agent or custodian is appointed to take charge of the
Premises or Tenant's Property (or has the authority to do so) for the Purpose
of enforcing a lien against the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than one (1) person
or entity, if any partner of the partnership or other person or entity is
involved in any of the acts or events described in subparagraphs d through g
above.
27.2 REMEDIES. In the event of ▇▇▇▇▇▇'s default hereunder, then in addition
to any other rights or remedies Landlord may have under any law, Landlord
shall have the right, at Landlord's option, without further notice or demand
of any kind to do the following:
a. Terminate this Lease and ▇▇▇▇▇▇'s right to possession of the
Premises and reenter the Premises and take possession thereof, and Tenant
shall have no further claim the Premises or under this Lease; or
b. Continue this Lease in effect, reenter and occupy the Premises for
the account of Tenant, and collect any unpaid Rent or other changes which
have or thereafter become due and payable; or
c. Reenter the Premises under the provisions of subparagraph b, and
thereafter elect to terminate this Lease and ▇▇▇▇▇▇'s right to possession of
the Premises.
If Landlord reenters the Premises under the provisions of subparagraphs b or
c above, Landlord shall not be deemed to have terminated this Lease or the
obligation of Tenant to pay any Rent or other changes thereafter accruing,
unless Landlord notifies Tenant in writing of Landlord's election to
terminate this Lease. In the event of any reentry or retaking of possession
by Landlord, Landlord shall have the right, but not the obligation, to remove
all or any part of Tenant's Property in the Premises and to place such
property in storage at a public warehouse at the expense and risk of Tenant.
If Landlord elects to relet the premises for the account of Tenant, the rent
received by Landlord from such reletting shall be applied as follows; first,
to the payment of any indebtedness other than rent due hereunder from Tenant
to Landlord; second, to the payment of any costs of such reletting third, to
the payment of the cost of any alterations or repairs to the Premises; fourth
to the payment of rent due and unpaid hereunder; and the balance, if any,
shall be held by Landlord and applied in payment of future Rent as it become
due. If that portion of rent received from the reletting which is applied
against the Rent due hereunder is less than the amount of the Rent due,
Tenant shall pay the deficiency to Landlord promptly upon demand by Landlord.
Such deficiency shall be calculated and paid monthly. Tenant shall also pay
to Landlord, as soon as determined, any costs and expenses incurred by
Landlord in connection with such reletting or in making alterations and
repairs to the Premises, which are not covered by the rent received from the
reletting.
Should Landlord elect to terminate this Lease under the provisions of
subparagraph a or c above, Landlord may recover as damages from Tenant the
following:
1. PAST RENT. The worth at the time of the award of any unpaid Rent
which had been earned at the time of termination; plus
2. RENT PRIOR TO AWARD. The worth at the time of the 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
that tenant proves could have been reasonably avoided; plus
3. RENT AFTER AWARD. The worth of the time of the award of the amount
by which the unpaid Rent for the balance of the Term
4. PROXIMATELY CAUSED DAMAGES. Any other amount necessary to
compensate Landlord for all detriment proximately caused by ▇▇▇▇▇▇'s failure
to perform its obligations under this Lease or which in the ordinary course
of things would be likely to result therefrom, including, but not limited to,
any costs or expenses (including attorney's fees), incurred by Landlord in
(a) retaking possession of the Premises, (b) maintaining the Premises after
Tenant's default, (c) preparing the Premises for reletting to a new tenant,
including any repairs or alterations and (d) reletting the Premises,
including brokers' commissions.
"The worth at the time of the award" as used in subparagraphs 1 and 2 above,
is to be computed by allowing interest at the rate of ten percent (10%) per
annum. "The worth at the time of the award" as used in subparagraph five is
to be computed by discounting the amount at the discount rate of the Federal
Reserve Bank situated nearest to the Premises at the time of the award plus
one percent (1%).
The waiver by Landlord of any breach of any term, covenant or condition of
this Lease shall not be deemed a waiver of such term, covenant or condition
or of any subsequent breach of the same or any other term, covenant or
condition. Acceptance of Rent by Landlord subsequent to any breach hereof
shall not be deemed a waiver of any preceding breach other than the failure
to pay the particular Rent so accepted, regardless of Landlord's knowledge of
any breach at the time of such acceptance of Rent. Landlord shall not be
deemed to have waived any term, covenant or condition unless Landlord gives
Tenant written notice of such waiver.
LANDLORD'S DEFAULT. If Landlord fails to perform any covenant, condition or
agreement contained in this Lease within thirty (30) days after receipt of
written notice from Tenant specifying such default, or if such default cannot
reasonable be cured with thirty (30) days. If Landlord fails to commence to
cure within that thirty (30) day period, then Landlord shall be liable to
Tenant for any damages sustained by ▇▇▇▇▇▇ as a result of Landlord's breach;
provided, however, it is expressly understood and agreed that if ▇▇▇▇▇▇
obtains a money judgement against Landlord resulting from any default or
other claim arising under this Lease, that judgment shall be satisfied only
if the rents, issues, profits, and other income actually received on account
of Landlord's right, title and interest in the Premises, Building or Project,
and no other real, personal or mixed property or Landlord (or of any of the
Partners which comprise Landlord, if any) wherever situated shall be subject
of levy to satisfy such judgment. After notice to Landlord of default,
Landlord (or any first mortgagee or first deed of trust beneficiary of
Landlord) fails to cure the default as provided herein, than Tenant shall
have the right to cure that default at Landlord's expense. Tenant shall not
have the right to terminate this Lease or to withhold, reduce or offset any
amount against any payments of Rent or any other charges due and payable
under this Lease except as otherwise specifically provided herein.
28. BROKERAGE FEES
Tenant warrants and represents that it has not dealt with any real estate
broker or agent in connection with this Lease or its negotiation except
Broker and Sales Agent. Tenant shall indemnify and hold Landlord harmless
from any cost, expense or liability (including costs of suit and reasonable
attorneys' fees) for any compensation, commission or fees claimed by any
other real estate broker or agent on connection with this Lease or its
negotiation by reason of any act of Tenant.
29. NOTICES.
All approvals and demands permitted or required to be given under this Lease
shall be in writing and deemed duly served or given if personally delivered
or sent by certified or registered U.S. mail, postage prepaid, and addressed
as follows: (a) if to Landlord, to Landlord's Mailing Address and to the
Building manager, and (b) if to Tenant, to Tenant's Mailing Address;
provided, however, notices to
Tenant shall be deemed duly served or given, delivered or mailed to Tenant at
the Premises. Landlord and Tenant may from time to time by notice to the
other designated another place for receipt of future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use consumption of energy or other
utilities during the Term, both Landlord and Tenant shall be bound thereby.
In the event of a difference in interpretation by ▇▇▇▇▇▇▇▇ and Tenant of any
such controls, the interpretation of Landlord shall prevail, and Landlord
shall have the right to enforce compliance therewith, including the right of
entry into the Premises to effect compliance.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be done in or about
the Premises which will in any way conflict with any law, statute, ordinance
or governmental rule or regulations now in force or which may hereafter be in
force, with the requirements of any board of fire insurance underwriters or
other similar bodies now or hereafter constituted, related to or affecting by
Tenant's improvements or acts. The judgment of any court of competent
jurisdiction or the admission of Tenant in any action against Tenant, whether
Landlord is a party thereto or not, that Tenant violated any law, statute,
ordinance or governmental rule, regulation or requirement, shall be
conclusive of that fact as between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or
Tenant which is due to strikes, labor, disputes inability to obtain labor,
materials, equipment or reasonable substitutes therefor, acts of God,
governmental restrictions or regulations or controls, judicial orders, enemy
or hostile governmental actions, civil commotion, or other casualty, or other
casualty beyond the reasonable control of the party obligated to perform
hereunder, shall excuse performance of the work by that party for a period
equal to the duration of that prevention, delay or stoppage. Nothing in this
Article 34 shall excuse or delay ▇▇▇▇▇▇'s obligation to pay Rent or other
charges under this Lease.
35. CURING TENANT'S DEFAULTS
If Tenant defaults in the performance of any of its obligations under this
Lease, Landlord may (but shall not be obligated to) without waiving such
default, perform the same for the account and at the expense of Tenant,
Tenant shall pay Landlord all costs of such performance promptly upon receipt
of a bill therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign, projection,
awning, signal or advertisement of any kind to any part of the Premises,
Building or Project, including without limitation, the inside or outside of
windows or doors without the written consent of Landlord. Landlord shall
have the right to remove any signs or other matter, installed without
▇▇▇▇▇▇▇▇'s permission, without being liable to Tenant by reason of such
removal, and to charge the cost of removal to Tenant as additional rent
hereunder, payable within ten (10) days of written demand by ▇▇▇▇▇▇▇▇.
37. MISCELLANEOUS
Accord and Satisfaction; Allocation of Payments. No payment by Tenant or
Receipt by Landlord of a lesser amount than the Rent provided for in this
Lease shall be deemed to be other than on account of the earliest due rent,
nor shall any endorsement or statement on any check or letter accompanying
any check or payment as rent be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of the Rent or pursue any other remedy provided
for in this Lease. In connection with the foregoing, Landlord shall have the
absolute right in its sole discretion to apply any payment received from
Tenant to any account or other payment of Tenant then not current and due or
delinquent.
Addenda. If any provision contained in an addendum to this Lease is
inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
Attorney's Fees. If any action or proceeding is brought by either party
against the other pertaining to or arising out of this Lease, the finally
prevailing party shall be entitled to recover all costs and expenses,
including reasonable attorney's fees, incurred on account of such action or
proceeding.
Captions, Articles and Section Numbers. The captions appearing within the
body of this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or meaning of
this Lease. All references to Article and Section numbers refer to Articles
and Sections in this Lease.
Changes Requested by Lender: Neither Landlord or Tenant shall unreasonably
withhold its consent to changes or amendments to this Lease requested by the
lender on Landlord's interest, so long as those changes do not alter the
basic business terms of this Lease or otherwise materially diminish any
rights or materially increase any obligations of the party from whom consent
to
such change or amendment is requested.
Choice of Law. This Lease shall be construed and enforced in accordance with
the Laws of the State.
Consent. Notwithstanding anything contained in this Leasee to the contrary,
Tenant shall have no claim and hereby waives the right to any claim against
Landlord for money damages by reason of any refusal: withholding or delaying
by Landlord of any consent, approval or statement of satisfaction and in such
event, ▇▇▇▇▇▇'s only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any right to such
consent, etc.
Corporate Authority. If Tenant is a corporation, each individual signing
this Lease on behalf of Tenant represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the corporation,
and that this Lease is binding on Tenant in accordance with its terms.
Tenant shall, at ▇▇▇▇▇▇▇▇'s request, deliver a certified copy of a resolution
of its board of directors authorizing such execution.
Counterparts. This Lease may be executed in multiple counterparts, all of
which shall constitute one and the same Lease.
Execution of Lease; No Option. The submission of this Lease to Tenant shall
be for examination purposes only and does not and shall not constitute a
reservation of or option for Tenant to lease, or otherwise create any
interest of Tenant in the Premises or any other premises within the Building
or Project, Execution of this Lease by Tenant and its return to Landlord
shall not be binding on Landlord notwithstanding any time interval, until
Landlord has in fact signed and delivered this Lease to Tenant.
Furnishing of Financial Statements; Tenant's Representations. In order to
induce ▇▇▇▇▇▇▇▇ to enter into this Lease ▇▇▇▇▇▇ agrees that it shall promptly
furnish Landlord, from time to time, upon ▇▇▇▇▇▇▇▇'s written request with
financial statements reflection Tenant's current financial condition. Tenant
represents and warrants that all financial statements, records and
information furnished by Tenant to Landlord in connection with this Lease are
true, correct and complete in all respects.
Further Assurances. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
Mortgagee Protection. ▇▇▇▇▇▇ agrees to send by certified or registered mail
to any first mortgagee or first deed of trust beneficiary of Landlord whose
address has been furnished to Tenant, a copy of any notice of default served
by Tenant on Landlord. If Landlord fails to cure such default within the
time provided for in this Lease, such mortgagee or beneficiary shall have an
additional thirty (30) days to cure such default; provided that if such
default cannot reasonably be cured within that thirty (30) day period, then
such mortgagee or beneficiary shall have such additional time to cure the
default as is reasonably necessary under the circumstances.
Prior Agreements; Amendments. This Lease contains all of the agreements of
the parties with respect to any matter covered or mentioned. In this Lease,
and no prior agreement or understanding pertaining to any such matter shall
be effective for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties or their
respective successors in interest.
Recording. Tenant shall not record this Lease without the prior written
consent of Landlord. Tenant, upon the request of ▇▇▇▇▇▇▇▇, shall execute and
acknowledge a "short form" memorandum of this Lease for recording purposes.
Severability. A final determination by a court of competent jurisdiction
that any provision of this Lease is invalid shall not affect the validity of
any provision, and any provision shall determined to be invalid shall, to the
extent possible, be construed to accomplish its intended effect.
Successors and Assigns. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the parties.
Time of the Essence. Time is of the essence of this Lease.
Waiver. No delay or omission in the exercise of any right or remedy of
Landlord upon any default by Tenant shall repair such right or remedy or be
construed as a waiver of such default.
The receipt and acceptance of Landlord of delinquent Rent shall not
constitute a waiver of any other default; it shall constitute only a waiver
of timely payment of the particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the acceptance
of keys to the Premises, shall constitute an acceptance of the surrender of
the Premises by Tenant before the expiration of the Term. Only a written
notice from Landlord to Tenant shall constitute acceptance of the surrender
of the Premises and accomplish a termination of the Lease.
▇▇▇▇▇▇▇▇'s consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by ▇▇▇▇▇▇.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of the
Lease.
The parties hereto have executed this Lease as of the date set forth on page
one (1).
/s/ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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1-24-97 Washington Mortgage Services Inc.
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1/24/97
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Landlord Tenant
RIDER: GUARANTEE OF LEASE
WHEREAS, the Landlord under this lease requires as a condition to its
execution of said lease that the undersigned guarantee the full performance
of the obligations of Tenant under said ▇▇▇▇▇; and
WHEREAS, the undersigned is desirous that Landlord enter into said
lease with ▇▇▇▇▇▇.
NOW, THEREFORE, in consideration of the execution of said lease by
▇▇▇▇▇▇▇▇, the undersigned hereby unconditionally guarantees the full
performance of each and all of the terms, covenants and conditions of said
lease to be kept and performed by said ▇▇▇▇▇▇, including the payment of all
rentals and all other charges to accrue thereunder. The undersigned further
agrees as follows:
1. That this covenant and agreement on its part shall continue in
favor of the Landlord notwithstanding any extension modification or
alteration of said lease entered into by and between the parties thereto,
their successors or into by an between the parties thereto, their successors
or assigns, or notwithstanding any assignment of said lease, with or without
consent of Landlord, and no extension, modification, alteration or assignment
of the above referred to lease shall in any manner release or discharge the
undersigned, and it does hereby consent thereto.
2. This guarantee will continue unchanged by any bankruptcy,
reorganization or insolvency of the Tenant or any successor of assignees
thereof or by any abandonment by a trustee of the Tenant.
3. Landlord may, without notice, assign this guarantee in whole or in
part and no assignment or transfer of the lease shall operate to distinguish
or diminish the liability of the undersigned hereunder.
4. The liability of the undersigned under this guarantee shall be
primary and that in any right of action which shall accrue to Landlord under
the lease, Landlord may, at its option, proceed against the undersigned
without having consumenced any action, or having obtained any judgement
against the Leasee.
5. To pay Landlord's reasonable attorney's fees and all costs and
other expenses incurred in any collection or attempt a collection (including
any suit or action or any appeal thereon) or in any negotiations relative to
the legal obligations hereby guaranteed or lawfully enforcing this guarantee
against the undersigned, individually and jointly.
6. That it does hereby waive notice of any demand by the Landlord, as
well as any notice of default in the payment of rent or any other amounts
contained or reserved in the lease.
The use of the singular herein shall include the plural. The obligation
of two or more parties shall be joint and several. The terms and provisions
of this guarantee shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties herein named.
IN WITNESS WHEREOF, the undersigned have each caused this guarantee
to be executed on the date set forth opposite early signature below.
1/24/97 /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Date Name
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Date Name
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Date Name
" A D D E N D U M A "
1. Actual footage to be determined as used Additional space at, then
current monthly rent.
2. Landlord may not lease out any of top floor until July 1, 1997. Anytime
after that date, tenant shall have right of first refusal within two
business days. If top floor has been fully leased, tenant then may have
right of first refusal on any remaining space on first floor or basement.
3. Tenant has the right to cancel lease with 120 days written notice.
▇▇▇▇ ▇▇▇▇▇ 1-24-97
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 1/24/97
" A D D E N D U M B "
1. Tenant may renew for an additional two year period at current rate plus
C.P.I if notified within 75 days expiration of lease.
PROPOSED FLOORPLAN FOR WASHINGTON HOME MORTGAGE - EAST WING
[MAP]
PROPOSED FLOORPLAN FOR WASHINGTON HOME MORTGAGE - WEST WING
Standard buildout to include in Aprox. $16,000, 20 offices + lunchroom and
kitchen. Kitchen to include sink countertop approx. 4' of countertop with
drawers and a set of overhead cabinets. Plumbed and wired for fridge,
dishwasher, and microwave.
[MAP]
[MAP]
EXHIBIT "A"
SECOND FLOOR PLAN