EXHIBIT 10.8
LEASE AGREEMENT
THIS LEASE AGREEMENT, is made and entered into as of this /flay of
January, 2004, by and between ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, husband
and wife, referred to herein as "Lessor", and INTERNATIONAL ISOTOPES, INC., a
Texas corporation, referred to herein as "Lessee".
WITNESSETH:
In consideration of the mutual covenants, conditions and agreements
contained herein and the payment of rents herein specified, it is agreed as
follows:
1. DEMISED PREMISES. Lessor does hereby lease, demise and rent unto
Lessee the following described premises and all improvements located thereon
situated in the County of Bonneville, State of Idaho, to-wit (the "Leased
Premises"):
▇▇▇ ▇ ▇▇▇▇▇ ▇, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Division No. 1,
according to the recorded plat thereof.
SUBJECT TO THE FOLLOWING:
1 Declaration of Covenants, Conditions and Restrictions for
St. ▇▇▇▇ Industrial Park, recorded in the records of
Bonneville County, Idaho, on October 22, 1996, as
Instrument No. 930434.
2 All existing easements or claims of easements, patent
reservations, rights-of-way, protective covenants, zoning
ordinances, and applicable building codes, laws and
regulations, encroachments, overlaps, boundary line
disputes and other matters which would be disclosed by an
accurate survey or inspection of the premises.
2. TERM. The term of this Lease Agreement shall be as follows:
2.1 Initial Term. The initial term of this Lease Agreement
shall be for a term of five (5) years commencing on February 1, 2004 (the
"Commencement Date") and extending to midnight on January 31, 2009, subject
however to prior termination as hereinafter set forth. For purposes of this
Lease Agreement, the term "Lease Year" shall refer to the period of time each
year commencing on the 1st day of February and ending at midnight on the 3
1st day of January.
2.2 Early Termination of Lease. Lessee has a patent purchase
pending and Lessee is entering into this Lease Agreement under the assumption
that such patent will be acquired prior to February 29, 2004. Notwithstanding
anything contained herein to the contrary, the parties agree that Lessee, at
Lessee's option, may terminate this Lease Agreement by giving written notice to
Lessor of such termination prior to 5:00 p.m. Mountain Standard Time on February
29, 2004, if Lessee determines prior to such time that such patent will not be
acquired. Such notice of termination must be sent by facsimile to Lessor in care
of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇ 18 prior to 5.00 p.m. Mountain Standard Time
on February 29, 2004. If Lessee properly terminates this Lease Agreement in such
manner, Lessee shall vacate the Leased Premises within thirty (30) days of the
date such notice is given and this Lease shall be terminated as of such time.
Lessor shall in the event of such early termination retain the $3,000.00 deposit
referred to in paragraph 3.6 herein, be entitled to receive and retain rent for
the entire month of February, 2004, and for any time thereafter that Lessee
retains possession of the Leased Premises. Lessee's right to terminate this
Lease Agreement in the above described manner shall expire if Lessee does not
send the notice of termination to Lessor in the above manner prior to 5:00 p.m.
Mountain Standard Time on February 29, 2004.
2.3 Option to Renew. The term of this Lease Agreement may be
extended, at the option of the Lessee, for one (1) successive period of five (5)
years, being herein sometimes referred to as the extended term, as follows:
Extended Term - Commencing five (5) years from the
Commencement Date and continuing
for five (5) years thereafter.
At the expiration of the Initial Term, if this Lease
shall be in full force and effect and the Lessee shall have fully performed all
of its terms and conditions, the Lessee shall have the option to extend this
Lease, upon the same terms and conditions, with rent to be paid as set forth in
Article 3 herein, for an extended term of five (5) years to commence immediately
upon the termination of the Initial Term of this Lease. The option for such
extended term shall be exercised by the Lessee giving written notice thereof to
the Lessor not less than one hundred eighty (1 80) days prior to the expiration
of the then current term.
The extended term shall be upon the same terms, covenants
and conditions as the original term of this Lease. In the event this Lease is
extended as aforesaid, a new Lease Agreement for the term of such extension
shall be unnecessary on such extension, this Lease constituting a present demise
for both the original and the extended term. Any termination of this Lease
during the Initial Term shall terminate all rights of extension hereunder.
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3. RENT AND SECURITY DEPOSIT. Lessee covenants, stipulates and
agrees to pay to Lessor as rent for the Leased Premises the following:
3.1 Lessee shall pay to Lessor monthly rental payments in the
amount of $4,309.50 each.
3.2 At the conclusion of each Lease Year during the term of
this Lease Agreement (the "Adjustment Date"), the monthly rent as
specified herein shall be adjusted according to the following terms.
The adjusted rent shall be based on the percent change in the CPI
published by the Bureau of Labor Statistics of the United States
Department of Labor for All Urban Consumers, U.S. City Average (All
Cities) for All Items with the index base being the current official
base of 1982 -1984 = 100 (hereafter the "CPI"). The monthly rent due
following each Adjustment Date shall be increased by a percentage of
the initial rent determined by comparison of the CPI on the Adjustment
Date to the CPI of the Base Month. The "Base Month", for purposes of
the rent adjustment provided herein shall be February, 2004. The
adjusted rent shall be computed by creating a fraction, the denominator
of which is the CPI for the Base Month. The numerator of which shall be
the CPI on the Adjustment Date. This fraction shall be multiplied by
the initial rent of $4,309.50 to determine the amount of the adjusted
rent. The adjusted monthly rent shall be the rent due hereunder during
the next ensuing Lease Year until the next Adjustment Date. In no
event, however, shall the amount of adjusted rent due be reduced below
the rent of $4,309.50 per month.
3.3 In the event that the CPI for the Adjustment Date is not
published or not available on the Adjustment Date, Lessee shall
continue paying rent at the last effective rate until the CPI for the
Adjustment Date becomes available. At that time the rent shall be
adjusted as provided herein and Lessee shall pay to Lessor the
difference between the rent due under the proper adjustment from the
Adjustment Date to the date the adjusted rent is calculated and the
amount of rent actually paid during that period.
3.4 In the event the publication of the CPI identified above
is discontinued, the parties hereto shall thereafter accept comparable
statistics on the cost of living as they shall be computed and
published by an official agency or department of the United States of
America or by a responsible financial entity of recognized authority
then to be selected by the parties hereto, making such revisions as the
circumstances may require to carry out the intent of this paragraph.
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3.5 All monthly rental payments shall be paid in advance with
the first months lease payments to be paid on or before February 1,2004
and all subsequent lease payments to be paid on the 1st day of each
month during the term of this Lease Agreement.
3.6 Lessee has on this date deposited with Lessor the sum of
$3,000.00. Such deposit amount of $3,000.00 shall be deposited with
Lessor as security for the faithful performance by Lessee of all
terms, provisions, conditions and covenants hereof upon the Lessee's
part to be kept, observed and performed, and said sum shall be
returned to Lessee after the time fixed as the expiration of this Lease
Agreement; provided, however, Lessee shall have faithfully kept,
observed and performed all the terms, provisions, conditions and
covenants on Lessee's part to be kept and performed; that in case of
default on the part of Lessee to comply with the provisions hereof,
said deposit shall be used first for the payment of delinquent rental,
secondly for the payment of costs and expenses incurred by Lessor in
repairing damage to the Leased Premises occasioned by the tenancy, and
thirdly, for the repair and renovation of the grounds, occasioned by
the default on the part of Lessee to comply with the terms hereof. Any
surplus over the amount deposited hereof, in excess of the costs and
expenses of Lessor in repairing damages due to the fault or neglect of
Lessee shall be returned to Lessee. In the event the deposit herein
made is not sufficient to cover costs of such repair, Lessee agrees to
forthwith pay to Lessor, or Lessor's agents, the amount necessary over
and above such deposit, to repair the Leased Premises.
3.7 In the event Lessee is delinquent in paying the rental
payments or any other payments required of Lessee herein all such past
due payments shall bear interest at eighteen percent (1 8%) per annum
from the date of default until paid.
4. ASSIGNMENT OR SUBLEASING. Lessee shall not assign, mortgage, or
encumber this Lease Agreement, nor sublet or permit the Leased Premises or any
part thereof to be used by others for any purpose, without the prior written
consent of Lessor being first obtained in each instance; provided, however, that
regardless of any such assignment or sublease, Lessee shall remain primarily
liable for the payment of the rent herein reserved and for the performance of
all the other terms of this Lease Agreement required to be performed by Lessee.
Lessor does hereby specifically consent to the sublease of this Lease Agreement
by Lessee to its subsidiary, International Isotopes Idaho, Inc. Provided,
however, regardless of such sublease, Lessee shall remain primarily liable for
the payment of the rent herein reserved and for the performance of all the other
terms of this Lease Agreement required to be performed by Lessee.
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5. USAGE OF PREMISES AND COMPLIANCE WITH LAWS AND INSURANCE. Lessee
shall not use, nor permit the use of the Leased Premises, for any other purpose
or purposes or under any other trade name without the prior written consent of
Lessor. The Leased Premises shall not be used for any unlawful purpose during
the term of this Lease Agreement, and Lessee agrees to comply with all
restrictive covenants (including any further covenants which may be recorded
pertaining to the Premises) and all federal, state, county and city ordinances,
laws and regulations, present or future, affecting the use of or the type of
business to be carried on in the Leased Premises. Lessee shall not use the
Leased Premises in a manner which shall increase the rate of fire or extended
coverage insurance on the building situate on the Leased Premises over that in
effect prior to this Lease Agreement. It is understood that before Lessee or any
sublessee of Lessee can conduct certain operations on the Leased Premises
contemplated by Lessee, a license to conduct such operations will need to be
obtained from the nuclear regulatory commission and other governmental agencies.
It is anticipated that in connection with the issuance of such licenses, Lessee
will be required to obtain a surety bond insuring against any damages caused to
the Leased Premises by hazardous waste and materials. Lessor shall be named as
an insured party and beneficiary of any such surety bond or insurance. THE
PROVISIONS CONCERNING HAZARDOUS WASTE AND MATERIAL SET FORTH IN APPENDIX 1
ATTACHED HERETO ARE INCORPORATED HEREIN BY REFERENCE AND ARE SPECIFICALLY MADE A
PART OF THIS LEASE AGREEMENT.
6. UTILITIES. Lessee shall furnish and timely pay for all heat,
gas, electricity, power, water, hot water, lights, telephone, and all other
utilities of every type and nature whatsoever used in or about the Leased
Premises at Lessee's own cost and expense, and shall indemnify Lessor against
any liability on such account. Lessor shall be under no obligation to furnish or
pay for any of such utilities.
7. LESSOR'S RIGHT OF ENTRY. Lessor or their agents shall have the
right to enter the Leased Premises at any reasonable time upon notice to Lessee
to examine the same and determine the state of repair or alteration which shall
or may be necessary for the safety or preservation of the Leased Premises.
8. ALTERATIONS. No alteration, addition, or improvement to the
Leased Premises shall be made by Lessee witho.ut the written consent of Lessor.
Any alteration, addition or improvement made by Lessee after such consent shall
have been given, and any fixtures installed as part thereof, shall at Lessor's
option become the property of Lessor upon the termination of this Lease
Agreement and be surrendered with the Leased Premises; provided, however, that
Lessor shall have the right to require Lessee to remove such fixtures at
Lessee's cost upon the termination of this Lease Agreement. Upon the removal of
any such fixtures, Lessee shall be required to promptly repair any damage or
injury done to the Leased Premises by such removal and restore the Leased
Premises to as good condition as the same are in at the time Lessee shall take
possession, reasonable wear and tear excepted. Lessee shall indemnify Lessor
against any mechanic's or materialman's lien or other lien arising out of the
making of any alteration, repair, addition, or improvement by Lessee, and shall
hold Lessor harmless of any such liens or claims, including reasonable attorney
fees and costs that may be incurred in removing any such liens.
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9. SIGNS. Lessee shall not affix or maintain upon the glass panes
or supports of the windows, doors or the exterior walls of the Leased Premises,
any signs, advertising placards, names, insignia, trademarks, descriptive
material or any other such like items except as shall have first received the
written approval of Lessor as to the size, type, color, location, copy, nature
and display qualities. Lessee may, upon approval of Lessor, have windows or
doors of the Leased Premises painted, or place decals thereon with the name of
Lessee, Lessee's address and business hours, provided said painting or decals
are removed upon termination or vacation of the Leased Premises at Lessee's
expense.
10. WASTE. Lessee shall not commit any waste or damage to the Leased
Premises hereby leased, nor permit any waste or damage to be done thereto.
11. PROTECTION OF PROPERTY. Lessee agrees to maintain the Leased
Premises in as good condition as the same is in at the time Lessee shall take
possession of the Leased Premises, reasonable wear and tear excepted. At the
termination of this Lease Agreement in any manner Lessee will surrender the
Leased Premises to Lessor in the condition above described. Damage to walls,
doors, windows, ceiling tiles and other parts of the Leased Premises shall be
repaired and painted by Lessee at Lessee's sole cost and expense and returned in
good condition at the termination of this Lease Agreement and at the termination
of this Lease Agreement carpets shall be repaired and cleaned by Lessee at
Lessee's cost and expense. Upon the termination of this Lease Agreement, Lessee
may remove any signs owned by Lessee from the Leased Premises, promptly
repairing any damage or injury done to the Leased Premises by such removal and
restoring the Leased Premises to the condition above described.
12. MAINTENANCE. All maintenance and repair necessary to keep the
Leased Premises in good condition and repair shall be made at Lessee's sole cost
and expense, including, but not limited to, normal maintenance and repairs to
the furnace or any other heating or air conditioning equipment, electrical
fixtures, all interior and exterior painting and decorating, glass replacement,
plumbing and sewer repair, and all other repairs of every kind, nature and
description. Lessee further agrees that all damage or injury done to the Leased
Premises by Lessee or by any person who may be in or upon the Leased Premises at
Lessee's invitation or with Lessee's permission shall be repaired by Lessee at
their sole cost and expense.
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13. INSURANCE.
13.1 Lessee shall maintain and pay for adequate fire and
extended coverage insurance upon the improvements located on the Leased
Premises.
13.2 Lessee shall also obtain, at Lessee's sole cost and
expense, general public liability insurance protecting and indemnifying
Lessor and Lessee against all claims for damages to person or property
or for loss of life or of property occurring upon, in, or about the
Leased Premises, with liability limits of $50,000.00 property damage
and $500,000.00 with respect to injuries to any one person, and
$1,000,000.00 in respect to any one accident or disaster or incident of
negligence.
13.3 Lessee shall obtain all such insurance policies before
Lessee takes possession of the Leased Premises. In the event of any
loss or destruction of the Leased Premises by any insured cause, the
insurance proceeds paid or payable as a result of said insured loss
shall be paid to Lessor and Lessor shall use such insurance proceeds to
repair the Leased Premises unless as a result of such loss or
destruction this Lease Agreement is terminated in accordance with the
provisions of paragraph 20 herein. In the event of such termination,
Lessor, at Lessor's option, shall determine whether or not to retain
the insurance proceeds for other purposes or use the insurance proceeds
to repair or restore the Leased Premises. Lessor shall remain as
co-insured on all such policies. Such insurance policies shall provide
that all notices issued by the insurance company pertaining to any
changes in insurance coverage under the insurance policy, delinquent
premium notices, or other matters pertaining to the coverage provided
by such insurance policies shall be sent to both Lessor and Lessee.
Evidence of such insurance policies shall be delivered to Lessor.
Lessor shall have the right at any time to require Lessee to provide to
Lessor copy of such insurance policies, together with any amendments or
additions to such insurance policies and evidence that all payments
required to be made in order to maintain such insurance in full course
and effect have been paid in full by Lessee.
14. TAXES AND ASSESSMENTS. Lessee shall pay all real estate taxes,
real property assessments and Owner's Association dues or assessments levied
against the Leased Premises pertaining to the term of this Lease Agreement.
Lessee shall pay all other taxes, licenses, and assessments of every kind,
nature and description, including all taxes and assessments on any equipment,
machinery, or assets of any kind or nature placed in or upon the Leased Premises
by Lessee.
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15. FIRE RISK. Lessee shall not do anything in the Leased Premises
or bring or keep anything therein which in any way increase or tend to increase
the risk of fire or damage by explosion, or which will conflict with the
regulations of the fire department or fire laws, or with any fire insurance
policy on the building or any part thereof, or with any rules or ordinances
established by the Health Department or with any municipal, state, county or
federal laws, ordinances or regulations.
16. ACCEPTANCE OF PREMISES. Lessee has examined the Leased Premises
and the buildings and improvements situate thereon, and accepts the same in the
condition and state of repair they are now in.
17. QUIET ENJOYMENT. Lessor covenants and warrants that if Lessee
shall faithfully and fully discharge the obligations herein set forth, Lessee
shall have and enjoy during the term of this Lease Agreement, a quiet and
undisturbed possession of the Leased Premises, together with all of its
appurtenances.
18. LESSEE INDEMNIFICATION. Lessee covenants and agrees not to do or
suffer anything to be done by which persons or property in or about or adjacent
to the Leased Premises may be injured, damaged, or endangered. Lessee hereby
agrees to indemnify Lessor against and to hold Lessor harmless from any and all
claims or demands for loss of or damage to property or for injury or death to
any person from any cause whatsoever while in, upon, or about the Leased
Premises during the term of this Lease Agreement or any extension thereof.
Lessee shall, at Lessee's own expense, maintain any ▇▇▇▇▇▇▇'▇ compensation
insurance or any other form of insurance required by law upon the employees or
agents employed by Lessee and Lessor shall have no responsibility with respect
thereto.
19. CONDEMNATION. If the Leased Premises, or any substantial portion
thereof, is condemned or taken by right of eminent domain, or by purchase in
lieu thereof, then and in any such event, this Lease Agreement shall terminate
and cease as of the time when possession is taken by the public authority and
rental shall be accounted for between Lessor and Lessee as of the date of the
surrender of possession. Such termination shall be without prejudice to the
rights of either Lessor or Lessee to recover compensation from the condemning
authority for any loss or damage caused by such condemnation. Neither Lessor nor
Lessee shall have any rights in or to any award or payment made to the other by
the condemning authority.
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20. DESTRUCTION. It is understood and agreed that if the building
upon the Leased Premises shall be destroyed by fire, the elements, riots,
insurrections, explosions or any other cause, or be so damaged thereby that it
becomes untenantable and cannot be rendered tenantable within ninety (90) days
from the date of such damage, this Lease Agreement may be terminated by either
Lessor or Lessee; provided, however, that in the event the building is so
damaged, Lessee shall not be required to pay the rental herein provided during
the term the Leased Premises are wholly unfit for occupancy. In the event that
only a portion of the Leased Premises be damaged or become untenantable, then
the rental during the period that said premises remain partially untenantable
shall be reduced in the proportion that the untenantable portion of the Leased
Premises bear to the total thereof. Lessor shall make all reasonable effort to
repair the Leased Premises within ninety (90) days or upon such extended period
as both parties shall agree, provided that if said partially tenantable premises
cannot be rendered fully tenantable within said ninety (90) days or extended
period agreed upon by both Lessor or Lessee, from the date of said damage, this
Lease Agreement can be terminated by either Lessor or Lessee.
21. DEFAULT
A. Time and prompt performance of each and every term,
covenant and condition of this Lease Agreement is material and of the
essence of this Lease Agreement. Every term, covenant and condition is
a material term, covenant and condition of this Lease Agreement.
Performance means compliance that is full and to the letter of this
Lease Agreement. Substantial compliance will not be sufficient.
Performance by Lessee is a condition precedent to performance by
Lessor.
B. The following or any of them constitute an event of
default of the terms of this Lease Agreement:
(1) Failure by Lessee to pay when due any installment of
rent or any other sum herein specified to be paid by Lessee if
the failure continues for three (3) days after written notice
has been given to Lessee;
(2) Abandonment of the Leased Premises by Lessee
without cause (for the purposes hereof the failure to occupy and
operate the Leased Premises for ten (10) consecutive days shall
be conclusively deemed an abandonment of the Leased Premises by
Lessee);
(3) Failure by Lessee to perform any other provision of
this Lease Agreement required of Lessee, if the failure to
perform the same is not cured within thirty (30) days after
written notice has been given to Lessee;
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(4) If Lessee shall file or have filed against Lessee in
any court pursuant to any statute, either in the United States
or of any other state, a Petition in Bankruptcy or Insolvency,
or for reorganizations, or for appointment of a receiver or
trustee of all or a substantial portion of the property owned by
Lessee, or if Lessee makes an assignment for the benefit of
creditors, or an execution or attachment shall be issued against
Lessee on all or a substantial portion of Lessee's property,
whereby all or any portion of the Leased Premises covered by
this Lease Agreement or any improvements thereon shall be taken
or occupied, or attempted to be taken or occupied by someone
other than Lessee, except as may herein be otherwise expressly
permitted, and such adjudication, appointment, assignment,
petition, execution or attachment shall not be set aside,
vacated, discharged or bonded within thirty (30) days after the
termination, issuance, or filing of the same; and
(5) The taking by any person, except by Lessor or its
agents or affiliates, of the leasehold created hereby or any
part thereof upon execution, or other process of law or equity
other than by assignment or sublease.
C. Upon the occurrence of any event of default, and the
failure, neglect or refusal of Lessee to cure the same during any
notice period required for such default specified above, without
further notice to Lessee, Lessor shall be entitled to effectuate such
rights and remedies against Lessee as are available to Lessor under the
terms of this Lease Agreement and the laws of the State of Idaho,
including, without limitation, the following remedies:
(1) Lessor shall have the immediate right, but not the
obligation, to terminate this Lease Agreement, and all rights of
Lessee hereunder by giving Lessee written notice of Lessor's
election to terminate. No act by Lessor other than giving notice
to Lessee shall terminate this Lease Agreement. In the event of
such termination, Lessee agrees to immediately surrender
possession of the Leased Premises. Should Lessor terminate this
Lease Agreement, it may recover from Lessee all damages Lessor
may incur by reason of Lessee's breach, including the cost of
recovering the Leased Premises, reasonable attorney fees, and
the worth at the time of such termination of the excess, if any,
of the amount of rent and charges equivalent to rent reserved in
this Lease Agreement for the remainder of the stated term over
the then reasonable rental value of the Leased Premises for the
remainder of the stated term, all of which amount shall be
immediately due and payable from Lessee to Lessor.
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(2) Lessor shall also have the right, without process of
law, to enter the Leased Premises and remove all persons and
property from the Leased Premises without being deemed guilty of
or liable in trespass. No such re-entry or taking possession of
the Leased Premises by Lessor shall be construed as an election
on its part to terminate this Lease Agreement unless a written
notice of such intention is given by Lessor to Lessee. No such
action by Lessor shall be considered or construed to be a
forcible entry.
(3) Lessor may, at any time, and from time to time,
without terminating this Lease Agreement, enforce all of its
rights and remedies under this Lease Agreement, or allowed by
law or equity, including the right to recover all rent as it
becomes due.
(4) In addition to the other rights of Lessor herein
provided, Lessor shall have the right, without terminating this
Lease Agreement, at its option, with or without process of law,
to reenter and retake possession of the Leased Premises, and all
improvements thereon, and collect rents from any Sublessee
and/or sublet the whole or any part of the Leased Premises for
the account of Lessee, upon any terms or conditions determined
by Lessor. Lessee shall be liable immediately to Lessor for all
costs Lessor incurs in reletting the Leased Premises, including
without limitation, brokers' commissions, expenses of
remodeling the Leased Premises required by the reletting, and
like costs. Re-letting can be for a period shorter or longer
than the remaining term of this Lease Agreement. In the event of
such re-letting, Lessor shall have the right to collect any rent
which may become payable under any sublease and apply the same
first to the payment of expenses incurred by Lessor in
dispossessing Lessee, and in re-letting the Leased Premises,
and, thereafter, to the payment of the rent herein required to
be paid by Lessee, in fulfillment of Lessee's covenants
hereunder; and Lessee shall be liable to Lessor for the rent
herein required to be paid, less any amounts actually received
by Lessor from a sublease, and after payment of expenses
incurred, applied on account of the rent due hereunder. In the
event of such election, Lessor shall not be deemed to have
terminated this Lease Agreement by taking possession of the
Leased Premises unless notice of termination, in writing, has
been given by Lessor to Lessee.
D. The remedies provided in this Lease Agreement are
cumulative in addition to any remedies now or later allowed by law or
equity. The exercise of any remedy by Lessor shall not be exclusive of
the right to effect any other remedy, allowed Lessor under the terms of
this Lease Agreement, or now or later allowed by law or equity.
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E. Any delay by Lessor in enforcing the terms of this Lease
Agreement or any considerations or departures therefrom shall not
operate to waive or be deemed to be a waiver of any right to require
compliance that is full and to the letter of this Lease Agreement or to
thereafter require performance by Lessee in strict accordance with the
terms of this Lease Agreement.
F. In the event that any remedy granted to Lessor under the
terms of this Lease Agreement is held void or unenforceable, Lessor
shall nevertheless have all of the other remedies provided in this
Lease Agreement that are not contrary to law.
G. Lessee hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event
of Lessee being evicted or dispossessed for any cause, or in the event
of Lessor obtaining possession of the Leased Premises by reason of the
violation by Lessee of any of the covenants and conditions of this
Lease Agreement or otherwise.
22. ENFORCEMENT. Should either party default in the performance of
any covenants or agreements contained herein, such defaulting party shall pay to
the other party all costs and expenses, including but not limited to, reasonable
attorney fees, including such fees on appeal, which the prevailing party may
incur in enforcing this Lease Agreement or in pursuing any remedy allowed by law
for breach hereof.
23. LESSOR'S RIGHT TO CURE LESSEE'S DEFAULTS. If Lessee shall
default in the performance of any covenant or condition in this Lease Agreement
required to be performed by Lessee, Lessor may, after thirty (30) days notice to
Lessee, or without notice if in Lessor's opinion an emergency exists, perform
such covenant or condition for the account and at the expense of Lessee, in
which event Lessee shall reimburse Lessor for all sums paid to effect such cure,
together with interest from the date of the expenditure at the rate of eighteen
percent (18%) per annum and reasonable attorney fees. All amounts owed by
Lessee to Lessor under this paragraph shall be additional rent. In order to
collect such additional rent Lessor shall have all the remedies available under
this Lease Agreement for a default in the payment of rent and the provisions of
this paragraph shall survive the termination of this Lease Agreement. Nothing
in this paragraph provided shall in any way require Lessor to perform or correct
any such defaults on the part of Lessee.
24. NOTICES. Service of any notice permitted or required under the
terms of this Lease Agreement shall be deemed complete upon the deposit of the
same in the United States
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27. LESSEE AS INDEPENDENT CONTRACTOR. Lessee's use of the Leased
Premises shall be as an independent contractor and nothing herein shall be
deemed to create a partnership, joint venture, employment, or master-servant
relationship between the parties.
28. IDAHO LAW GOVERNS. This Lease Agreement shall be governed by,
construed, and enforced in accordance with the laws of the State of Idaho.
29. MODIFICATION. This Lease Agreement contains the entire agreement
between the parties, and may not be modified or changed orally, but only by an
agreement in writing and signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
30. SEVERANCE AND VALIDITY. In the event any provision of this Lease
Agreement or any part thereof shall be determined by any court of competent
jurisdiction to be invalid, void, or otherwise unenforceable, the remaining
provisions hereunder or parts thereof, shall remain in full force and effect,
and shall in no way be affected, impaired or invalidated thereby, it being
agreed that such remaining provisions shall be construed in a manner most
closely approximating the intention of the parties with respect to the invalid,
void or unenforceable provision or part thereof.
31. BINDING ON SUCCESSORS. It is further expressly agreed, that the
provisions, stipulations, terms, covenants, conditions and undertakings in this
Lease Agreement and any renewals thereof shall inure to the benefit of and bind
the heirs, executors, administrators and assigns or successors in interest of
both the Lessor and Lessee.
32. MUTUAL RELEASE OF LIABILITY TO THE EXTENT OF INSURANCE COVERAGE.
Neither Lessor nor Lessee shall be liable to the other for any business
interruption or any loss or damage to property or injury to or death of persons
occurring on the Leased Premises or the adjoining property, or in any manner
growing out of or connected with Lessee's use and occupation of the Leased
Premises, or the condition thereof, or the adjoining property, whether or not
caused by the negligence or other fault of Lessor or Lessee or their respective
agents, employees, subtenants, licensees, or assignees. This release shall apply
only to the extent that such business interruption loss or damage to property,
or injury to or death of persons is covered by insurance, regardless of whether
such insurance is payable to or protects Lessor or Lessee or both. Nothing in
this paragraph shall be construed to impose any other or greater liability upon
either Lessor or Lessee than would have existed in the absence of the paragraph.
This release shall be in effect only so long as the applicable insurance
policies contain a clause to the effect that this release shall not affect the
right of the insured to recover under such policies.
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APPENDIX 1
HAZAKDOUS WASTE AND MATERIAL - INDEMNITY
Lessee shall not cause or permit any Hazardous Waste or Material
(hereafter defined) to be brought upon, kept or used in or about the Leased
Premises by Lessee, or agents, employees, contractors or invitees of Lessee,
expect in strict compliance with all applicable federal. state and local laws.
statutes. ordinances and regulations. Lessee agrees to indemnify, save and hold
Lessor harmless from and against any claim, liability, damage, judgment,
penalty, fine, cost, loss or expenses, including, without limitation, diminution
in value of the Leased Premises, damages for loss or restriction on use of
rentable or usable space or of any amenity of the Leased Premises, damages
arising from any adverse impact on marketing of space, and sums paid in
settlement of claims, reasonable attorney's fees, reasonable consultant fees,
engineer's fees and other expert fees, which arise from or relate to the breach
by Lessee of the prohibition herein contained and which arise during or after
the lease term as a result of said breach. This indemnification and hold
harmless of the Lessor by the Lessee for the breach of the prohibition herein
contained includes, without limitation, reasonable costs incurred in connection
with an investigation of site conditions or any clean up, remedial, removal or
restoration work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Waste or Material present in the soil
or ground water on or under the Leased Premises caused by or resulting from the
breach by Lessee of the prohibition herein contained. Without limiting the
foregoing, if the presence of any Hazardous Waste or Material on the Leased
Premises is caused or permitted by Lessee and results in any contamination of
the Leased Premises, Lessee shall promptly take all actions at Lessee's sole
cost and expense as are necessary to return the Leased Premises to the
condition necessary to meet the requirements of any competent governmental
authorities with jurisdiction over the Leased Premises.
As used herein, the term "Hazardous Waste or Material" means any
hazardous or toxic substance, material or waste which is or becomes regulated by
any local, state or governmental authority charged with interpreting and
enforcing the various statutes identified in this paragraph or similar statutes,
or their state or local counterparts. The term "Hazardous Waste or Material"
includes, without limitation, any material, waste or substance that is (i)
petroleum, (ii) asbestos, (iii) designated as a "pollutant" pursuant to Section
311 of the Federal Water Pollution Control Act (33 U.S.C. ss.1321), (iv) defined
as a "Hazardous Waste" pursuant to ss 1004 of the Federal Resource Conservation
and Recovery Act, 42 U.S.C. ss.6901, et. seq. (42 U.S.C. ss.6903), or the Idaho
Hazardous Waste Management Act of 1983, Title 39, Chapter 44, Idaho Code, (v)
defined as a "hazardous substance" pursuant to ss.101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. ss.9501, et
seq., (vi) or otherwise regulated under the Toxic Substances Control Act, 15
U.S.C. ss.2601, et seq.; the Clean Air Act, 42 U.S.C. ss.7401, et seq.; the
Clean Water Act, 33 U.S.C. ss.1251, et seq.; or (vii) defined as a "regulated
substance" pursuant to subchapter IX, Solid Waste Disposal Act (regulation of
underground storage tanks), 42 U.S.C. ss.6991, et seq.
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