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Lease Agreement v2
THIS LEASE AGREEMENT is made and entered into [DATE], by and between
[NAME], whose address is [ADDRESS], (hereinafter referred to as
"Landlord"), and [NAME], whose address is [ADDRESS], (hereinafter referred
to as "Tenant").
ARTICLE I - GRANT OF LEASE
Landlord, in consideration of the rents to be paid and the covenants and
agreements to be performed and observed by the Tenant, does hereby lease to
the Tenant and the Tenant does hereby lease and take from the Landlord the
property described in Exhibit "A" attached hereto and by reference made a
part hereof (the "Leased Premises"), together with, as part of the parcel,
all improvements located thereon.
ARTICLE II - LEASE TERM
Section l. Total Term of Lease. The term of this Lease shall begin on the
commencement date, as defined in Section 2 of this Article II, and shall
terminate on [DATE].
Section 2. Commencement Date. The "Commencement Date" shall mean the date
on which the Tenant shall commence to conduct business on the Leased
Premised, so long as such date is not in excess of sixty (60) days
subsequent to execution hereof.
ARTICLE III - EXTENSIONS
The parties hereto may elect to extend this Agreement upon such terms and
conditions as may be agreed upon in writing and signed by the parties at
the time of any such extension.
ARTICLE IV - DETERMINATION OF RENT
The Tenant agrees to pay the Landlord and the Landlord agrees to accept,
during the term hereof, at such place as the Landlord shall from time to
time direct by notice to the Tenant, rent at the following rates and times:
Section 1. Annual Rent. Annual rent for the term of the Lease shall be
[AMOUNT] Dollars ($[#]), plus applicable sales tax.
Section 2. Payment of Yearly Rent. The annual rent shall be payable in
advance in equal monthly installments of one-twelfth (1/12th) of the total
yearly rent, which shall be [AMOUNT] Dollars ($[#]), on the first day of
each and every calendar month during the term hereof, and prorata for the
fractional portion of any month, except that on the first day of the
calendar month immediately following the Commencement Date, the Tenant
shall also pay to the Landlord rent at the said rate for any portion of the
preceding calendar month included in the term of this Lease.
Reference to yearly rent hereunder shall not be implied or construed to the
effect that this Lease or the obligation to pay rent hereunder is from year
to year, or for any term shorter than the existing Lease term, plus any
extensions as may be agreed upon.
A late fee in the amount of [AMOUNT] Dollars ($[#]) shall be assessed if
payment is not postmarked or received by Landlord on or before the tenth
day of each month.
ARTICLE V - SECURITY DEPOSIT
The Tenant has deposited with the Landlord the sum of [AMOUNT] Dollars
($[#]) as security for the full and faithful performance by the Tenant of
all the terms of this lease required to be performed by the Tenant. Such
sum shall be returned to the Tenant after the expiration of this lease,
provided the Tenant has fully and faithfully carried out all of its terms.
In the event of a bona fide sale of the property of which the leased
premises are a part, the Landlord shall have the right to transfer the
security to the purchaser to be held under the terms of this lease, and the
Landlord shall be released from all liability for the return of such
security to the Tenant.
ARTICLE VI - TAXES
Section l. Personal Property Taxes. The Tenant shall be liable for all
taxes levied against any leasehold interest of the Tenant or personal
property and trade fixtures owned or placed by the Tenant in the Leased
Premises.
Section 2. Real Estate Taxes. During the continuance of this lease
Landlord shall deliver to Tenant a copy of any real estate taxes and
assessments against the Leased Property. From and after the Commencement
Date, the Tenant shall pay to Landlord not later than twenty-one (21) days
after the day on which the same may become initially due, all real estate
taxes and assessments applicable to the Leased Premises, together with any
interest and penalties lawfully imposed thereon as a result of Tenant's
late payment thereof, which shall be levied upon the Leased Premises during
the term of this Lease.
Section 3. Contest of Taxes. The Tenant, at its own cost and expense,
may, if it shall in good faith so desire, contest by appropriate
proceedings the amount of any personal or real property tax. The Tenant
may, if it shall so desire, endeavor at any time or times, by appropriate
proceedings, to obtain a reduction in the assessed valuation of the Leased
Premises for tax purposes. In any such event, if the Landlord agrees, at
the request of the Tenant, to join with the Tenant at Tenant's expense in
said proceedings and the Landlord agrees to sign and deliver such papers
and instruments as may be necessary to prosecute such proceedings, the
Tenant shall have the right to contest the amount of any such tax and the
Tenant shall have the right to withhold payment of any such tax, if the
statute under which the Tenant is contesting such tax so permits.
Section 4. Payment of Ordinary Assessments. The Tenant shall pay all
assessments, ordinary and extraordinary, attributable to or against the
Leased Premises not later than twenty-one (21) days after the day on which
the same became initially due. The Tenant may take the benefit of any law
allowing assessments to be paid in installments and in such event the
Tenant shall only be liable for such installments of assessments due during
the term hereof.
Section 5. Changes in Method of Taxation. Landlord and Tenant further
agree that if at any time during the term of this Lease, the present method
of taxation or assessment of real estate shall be changed so that the whole
or any part of the real estate taxes, assessment or governmental
impositions now levied, assessed or imposed on the Leased Premises shall,
in lieu thereof, be assessed, levied, or imposed wholly or in part, as a
capital levy or otherwise upon the rents reserved herein or any part
thereof, or as a tax, corporation franchise tax, assessment, levy or
charge, or any part thereof, measured by or based, in whole or in part,
upon the Leased Premises or on the rents derived therefrom and imposed upon
the Landlord, then the Tenant shall pay all such taxes, assessments,
levies, impositions, or charges. Nothing contained in this Lease shall
require the Tenant to pay an estate, inheritance, succession, capital levy,
corporate franchise, gross receipts, transfer or income tax of the
Landlord, nor shall any of the same be deemed real estate taxes as defined
herein unless the same be imposed in lieu of the real estate taxes.
ARTICLE VII - CONSTRUCTION AND COMPLETION
Section 1. Improvements by TENANT. Tenant may have prepared plans and
specifications for the construction of improvements, and, if so, such plans
and specifications are attached hereto as Exhibit "B" and incorporated
herein by reference. Tenant shall obtain all certificates, permits,
licenses and other authorizations of governmental bodies or authorities
which are necessary to permit the construction of the improvements on the
demised premises and shall keep the same in full force and effect at
Tenant's cost.
Tenant shall negotiate, let and supervise all contracts for the furnishing
of services, labor, and maerials for the construction of the improvements
on the demised premises at its cost. All such contracts shall require the
contracting party to guarantee performance and all workmanship and
materials installed by it for a period of one year following the date of
completion of construction. Tenant shall cause all contracts to be fully
and completely performed in a good and workmanlike manner, all to the
effect that the improvements shall be fully and completely constructed and
installed in accordance with good engineering and construction practice.
During the course of construction, Tenant shall, at its cost, keep in full
force and effect a policy of builder's risk and liability insurance in a
sum equal, from time to time, to three times the amount expended for
construction of the improvements. All risk of loss or damage to the
improvements during the course of construction shall be on Tenant with the
proceeds from insurance thereon payable to Landlord.
Upon completion of construction, Tenant shall, at its cost, obtain an
occupancy permit and all other permits or licenses necessary for the
occupancy of the improvements and the operation of the same as set out
herein and shall keep the same in force.
Nothing herein shall alter the intent of the parties that Tenant shall be
fully and completely responsible for all aspects pertaining to the
construction of the improvements of the demised premises and for the
payment of all costs associated therewith. Landlord shall be under no duty
to investigate or verify Tenant's compliance with the provision herein.
Moreover, neither Tenant nor any third party may construe the permission
granted Tenant hereunder to create any responsibility on the part of the
Landlord to pay for any improvements, alterations or repairs occasioned by
the Tenant. The Tenant shall keep the property free and clear of all liens
and, should the Tenant fail to do so, or to have any liens removed from the
property within fourteen (14) days of notification to do so by the Landlord
, in addition to all other remedies available to the Landlord , the Tenant
shall indemnify and hold the Landlord harmless for all costs and expenses,
including attorney's fees, occasioned by the Landlord in having said lien
removed from the property; and, such costs and expenses shall be billed to
the Tenant monthly and shall be payable by the Tenant with that month's
regular monthly rental as additional reimburseable expenses to the Landlord
by the Tenant.
Section 2. Utilities. Tenant shall pay for all water, sanitation, sewer,
electricity, light, heat, gas, power, fuel, janitorial, and other services
incident to Tenant's use of the Leased Premises, whether or not the cost
thereof be a charge or imposition against the Leased Premises.
ARTICLE VIII - OBLIGATIONS FOR REPAIRS
Section 1. LANDLORD'S Repairs. Subject to any provisions herein to the
contrary, and except for maintenance or replacement necessitated as the
result of the act or omission of sublessees, licensees or contractors, the
Landlord shall be required to repair only defects, deficiencies, deviations
or failures of materials or workmanship in the building. The Landlord shall
keep the Leased Premises free of such defects, deficiencies, deviations or
failures during the first twelve (12) months of the term hereof.
Section 2. TENANT'S Repairs. The Tenant shall repair and maintain the
Leased Premises in good order and condition, except for reasonable wear and
tear, the repairs required of Landlord pursuant hereto, and maintenance or
replacement necessitated as the result of the act or omission or negligence
of the Landlord, its employees, agents, or contractors.
Section 3. Requirements of the Law. The Tenant agrees that if any
federal, state or municipal government or any department or division
thereof shall condemn the Leased Premises or any part thereof as not in
conformity with the laws and regulations relating to the construction
thereof as of the commencement date with respect to conditions latent or
otherwise which existed on the Commencement Date, or, with respect to items
which are the Landlord's duty to repair pursuant to Section 1 and 3 of this
Article; and such federal, state or municipal government or any other
department or division thereof, has ordered or required, or shall hereafter
order or require, any alterations or repairs thereof or installations and
repairs as may be necessary to comply with such laws, orders or
requirements (the validity of which the Tenant shall be entitled to
contest); and if by reason of such laws, orders or the work done by the
Landlord in connection therewith, the Tenant is deprived of the use of the
Leased Premises, the rent shall be abated or adjusted, as the case may be,
in proportion to that time during which, and to that portion of the Leased
Premises of which, the Tenant shall shall be deprived as a result thereof,
and the Landlord shall be obligated to make such repairs, alterations or
modifications at Landlord's expense.
All such rebuilding, altering, installing and repairing shall be done in
accordance with Plans and Specifications approved by the Tenant, which
approval shall not be unreasonably withheld. If, however, such
condemnation, law, order or requirement, as in this Article set forth,
shall be with respect to an item which shall be the Tenant's obligation to
repair pursuant to Section 2 of this Article VII or with respect to
Tenant's own costs and expenses, no abatement or adjustment of rent shall
be granted; provided, however, that Tenant shall also be entitled to
contest the validity thereof.
Section 4. TENANT'S Alterations. The Tenant shall have the right, at its
sole expense, from time to time, to redecorate the Leased Premises and to
make such non-structural alterations and changes in such parts thereof as
the Tenant shall deem expedient or necessary for its purposes; provided,
however, that such alterations and changes shall neither impair the
structural soundness nor diminish the value of the Leased Premises. The
Tenant may make structural alterations and additions to the Leased Premises
provided that Tenant has first obtained the consent thereto of the Landlord
in writing. The Landlord agrees that it shall not withhold such consent
unreasonably. The Landlord shall execute and deliver upon the request of
the Tenant such instrument or instruments embodying the approval of the
Landlord which may be required by the public or quasi public authority for
the purpose of obtaining any licenses or permits for the making of such
alterations, changes and/or installations in, to or upon the Leased
Premises and the Tenant agrees to pay for such licenses or permits.
Section 5. Permits and Expenses. Each party agrees that it will procure
all necessary permits for making any repairs, alterations, or other
improvements for installations, when applicable. Each Party hereto shall
give written notice to the other party of any repairs required of the other
pursuant to the provisions of this Article and the party responsible for
said repairs agrees promptly to commence such repairs and to prosecute the
same to completion diligently, subject, however, to the delays occasioned
by events beyond the control of such party.
Each party agrees to pay promptly when due the entire cost of any work done
by it upon the Leased Premises so that the Leased Premises at all times
shall be free of liens for labor and materials. Each party further agrees
to hold harmless and indemnify the other party from and against any and all
injury, loss, claims or damage to any person or property occasioned by or
arising out of the doing of any such work by such party or its employees,
agents or contractors. Each party further agrees that in doing such work
that it will employ materials of good quality and comply with all
governmental requirements, and perform such work in a good and workmanlike
manner.
ARTICLE IX - TENANT'S COVENANTS
Section 1. TENANT's Covenants. Tenant covenants and agrees as follows:
a. To procure any licenses and permits required for any use made of the
Leased Premises by Tenant, and upon the expiration or termination of this
Lease, to remove its goods and effects and those of all persons claiming
under it, and to yield up peaceably to Landlord the Leased Premises in good
order, repair and condition in all respects; excepting only damage by fire
and casualty covered by Tenant's insurance coverage, structural repairs
(unless Tenant is obligated to make such repairs hereunder) and reasonable
wear and tear;
b. To permit Landlord and its agents to examine the Leased Premises at
reasonable times and to show the Leased Premises to prospective purchasers
of the Building and to provide Landlord, if not already available, with a
set of keys for the purpose of said examination, provided that Landlord
shall not thereby unreasonably interfere with the conduct of Tenant's
business;
c. To permit Landlord to enter the Leased Premises to inspect such
repairs, improvements, alterations or additions thereto as may be required
under the provisions of this Lease. If, as a result of such repairs,
improvements, alterations, or additions, Tenant is deprived of the use of
the Leased Premises, the rent shall be abated or adjusted, as the case may
be, in proportion to that time during which, and to that portion of the
Leased Premises of which, Tenant shall be deprived as a result thereof.
ARTICLE X - INDEMNITY BY TENANT
Section l. Indemnity and Public Liability. The Tenant shall save Landlord
harmless and indemnify Landlord from all injury, loss, claims or damage to
any person or property while on the Leased Premises, unless caused by the
willful acts or omissions or gross negligence of Landlord, its employees,
agents, licensees or contractors. Tenant shall maintain, with respect to
the Leased Premises, public liability insurance with limits of not less
than one million dollars for injury or death from one accident and
$250,000.00 property damage insurance, insuring Landlord and Tenant against
injury to persons or damage to property on or about the Leased Premises. A
copy of the policy or a certificate of insurance shall be delivered to
Landlord on or before the commencement date and no such policy shall be
cancellable without ten (10) days prior written notice to Landlord.
ARTICLE XI - USE OF PROPERTY BY TENANT
Section 1. Use. The Leased Premises may be occupied and used by Tenant
exclusively as a [DESCRIBE], to be known as a [DESCRIBE] .
Nothing herein shall give Tenant the right to use the property for any
other purpose or to sublease, assign, or license the use of the property to
any sublessee, assignee, or licensee, which or who shall use the property
for any other use.
ARTICLE XII - SIGNAGE
Section l. Exterior Signs. Tenant shall have the right, at its sole risk
and expense and in conformity with applicable laws and ordinances, to erect
and thereafter, to repair or replace, if it shall so elect signs on any
portion of the Leased Premises, providing that Tenant shall remove any such
signs upon termination of this lease, and repair all damage occasioned
thereby to the Leased Premises.
Section 2. Interior Signs. Tenant shall have the right, at its sole risk
and expense and in conformity with applicable laws and ordinances, to
erect, maintain, place and install its usual and customary signs and
fixtures in the interior of the Leased Premises.
ARTICLE XIII - INSURANCE
Section 1. Insurance Proceeds. In the event of any damage to or
destruction of the Leased Premises, Tenant shall adjust the loss and settle
all claims with the insurance companies issuing such policies. The parties
hereto do irrevocably assign the proceeds from such insurance policies for
the purposes hereinafter stated to any institutional first mortgagee or to
Landlord and Tenant jointly, if no institutional first mortgagee then holds
an interest in the Leased Premises. All proceeds of said insurance shall be
paid into a trust fund under the control of any institutional first
mortgagee, or of Landlord and Tenant if no institutional first mortgagee
then holds an interest in the Leased Premises, for repair, restoration,
rebuilding or replacement, or any combination thereof, of the Leased
Premises or of the improvements in the Leased Premises. In case of such
damage or destruction, Landlord shall be entitled to make withdrawals from
such trust fund, from time to time, upon presentation of:
a. bills for labor and materials expended in repair, restoration,
rebuilding or replacement, or any combination thereof;
b. Landlord's sworn statement that such labor and materials for which
payment is being made have been furnished or delivered on site; and
c. the certificate of a supervising architect (selected by Landlord and
Tenant and approved by an institutional first mortgagee, if any, whose fees
will be paid out of said insurance proceeds) certifying that the work being
paid for has been completed in accordance with the Plans and Specifications
previously approved by Landlord , Tenant and any institutional first
mortgagee in a first class, good and workmanlike manner and in accordance
with all pertinent governmental requirements.
Any insurance proceeds in excess of such proceeds as shall be necessary for
such repair, restoration, rebuilding, replacement or any combination
thereof shall be the sole property of Landlord subject to any rights
therein of Landlord's mortgagee, and if the proceeds necessary for such
repair, restoration, rebuilding or replacement, or any combination thereof
shall be inadequate to pay the cost thereof, Tenant shall suffer the
deficiency.
Section 2. Subrogation. Landlord and Tenant hereby release each other, to
the extent of the insurance coverage provided hereunder, from any and all
liability or responsibility (to the other or anyone claiming through or
under the other by way of subrogation or otherwise) for any loss to or
damage of property covered by the fire and extended coverage insurance
policies insuring the Leased Premises and any of Tenant's property, even if
such loss or damage shall have been caused by the fault or negligence of
the other party.
Section 3. Contribution. Tenant shall reimburse Landlord for all insurance
premiums connected with or applicable to the Leased Premises for whatever
insurance policy the Landlord , at its sole and exclusive option, should
select.
ARTICLE XIV - DAMAGE TO DEMISED PREMISES
Section 1. Abatement or Adjustment of Rent. If the whole or any part of
the Leased Premises shall be damaged or destroyed by fire or other casualty
after the execution of this Lease and before the termination hereof, then
in every case the rent reserved in Article IV herein and other charges, if
any, shall be abated or adjusted, as the case may be, in proportion to that
portion of the Leased Premises of which Tenant shall be deprived on account
of such damage or destruction and the work of repair, restoration,
rebuilding, or replacement or any combination thereof, of the improvements
so damaged or destroyed, shall in no way be construed by any person to
effect any reduction of sums or proceeds payable under any rent insurance
policy.
Section 2. Repairs and Restoration. Landlord agrees that in the event of
the damage or destruction of the Leased Premises, Landlord forthwith shall
proceed to repair, restore, replace or rebuild the Leased Premises
(excluding Tenant's leasehold improvements), to substantially the condition
in which the same were immediately prior to such damage or destruction. The
Landlord thereafter shall diligently prosecute said work to completion
without delay or interruption except for events beyond the reasonable
control of Landlord . Notwithstanding the foregoing, if Landlord does not
either obtain a building permit within ninety (90) days of the date of such
damage or destruction, or complete such repairs, rebuilding or restoration
and comply with conditions (a), (b) and (c) in Section 1 of Article XIII
within nine (9) months of such damage or destruction, then Tenant may at
any time thereafter cancel and terminate this Lease by sending ninety (90)
days written notice thereof to Landlord , or, in the alternative, Tenant
may, during said ninety (90) day period, apply for the same and Landlord
shall cooperate with Tenant in Tenant's application. Notwithstanding the
foregoing, if such damage or destruction shall occur during the last year
of the term of this Lease, or during any renewal term, and shall amount to
twenty-five (25%) percent or more of the replacement cost, (exclusive of
the land and foundations), this Lease, except as hereinafter provided in
Section 3 of Article XV, may be terminated at the election of either
Landlord or Tenant, provided that notice of such election shall be sent by
the party so electing to the other within thirty (30) days after the
occurrence of such damage or destruction. Upon termination, as aforesaid,
by either party hereto, this Lease and the term thereof shall cease and
come to an end, any unearned rent or other charges paid in advance by
Tenant shall be refunded to Tenant, and the parties shall be released
hereunder, each to the other, from all liability and obligations hereunder
thereafter arising.
ARTICLE XV - CONDEMNATION
Section 1. Total Taking. If, after the execution of this Lease and prior
to the expiration of the term hereof, the whole of the Leased Premises
shall be taken under power of eminent domain by any public or private
authority, or conveyed by Landlord to said authority in lieu of such
taking, then this Lease and the term hereof shall cease and terminate as of
the date when possession of the Leased Premises shall be taken by the
taking authority and any unearned rent or other charges, if any, paid in
advance, shall be refunded to Tenant.
Section 2. Partial Taking. If, after the execution of this Lease and
prior to the expiration of the term hereof, any public or private authority
shall, under the power of eminent domain, take, or Landlord shall convey to
said authority in lieu of such taking, property which results in a
reduction by fifteen (15%) percent or more of the area in the Leased
Premises, or of a portion of the Leased Premises that substantially
interrupts or substantially obstructs the conducting of business on the
Leased Premises; then Tenant may, at its election, terminate this Lease by
giving Landlord notice of the exercise of Tenant's election within thirty
(30) days after Tenant shall receive notice of such taking. In the event of
termination by Tenant under the provisions of Section 1 of this Article XV,
this Lease and the term hereof shall cease and terminate as of the date
when possession shall be taken by the appropriate authority of that portion
of the Entire Property that results in one of the above takings, and any
unearned rent or other charges, if any, paid in advance by Tenant shall be
refunded to Tenant.
Section 3. Restoration. In the event of a taking in respect of which
Tenant shall not have the right to elect to terminate this Lease or, having
such right, shall not elect to terminate this Lease, this Lease and the
term thereof shall continue in full force and effect and Landlord , at
Landlord's sole cost and expense, forthwith shall restore the remaining
portions of the Leased Premises, including any and all improvements made
theretofore to an architectural whole in substantially the same condition
that the same were in prior to such taking. A just proportion of the rent
reserved herein and any other charges payable by Tenant hereunder,
according to the nature and extent of the injury to the Leased Premises and
to Tenant's business, shall be suspended or abated until the completion of
such restoration and thereafter the rent and any other charges shall be
reduced in proportion to the square footage of the Leased Premises
remaining after such taking.
Section 4. The Award. All compensation awarded for any taking, whether
for the whole or a portion of the Leased Premises, shall be the sole
property of the Landlord whether such compensation shall be awarded for
diminution in the value of, or loss of, the leasehold or for diminution in
the value of, or loss of, the fee in the Leased Premises, or otherwise.
The Tenant hereby assigns to Landlord all of Tenant's right and title to
and interest in any and all such compensation. However, the Landlord shall
not be entitled to and Tenant shall have the sole right to make its
independent claim for and retain any portion of any award made by the
appropriating authority directly to Tenant for loss of business, or damage
to or depreciation of, and cost of removal of fixtures, personalty and
improvements installed in the Leased Premises by, or at the expense of
Tenant, and to any other award made by the appropriating authority directly
to Tenant.
Section 5. Release. In the event of any termination of this Lease as the
result of the provisions of this Article XV, the parties, effective as of
such termination, shall be released, each to the other, from all liability
and obligations thereafter arising under this lease.
ARTICLE XVI - DEFAULT
Section 1. LANDLORD'S Remedies. In the event that:
a. Tenant shall on three or more occasions be in default in the payment of
rent or other charges herein required to be paid by Tenant (default herein
being defined as payment received by Landlord ten or more days subsequent
to the due date), regardless of whether or not such default has occurred on
consecutive or non-consecutive months; or
b. Tenant has caused a lien to be filed against the Landlord's property
and said lien is not removed within thirty (30) days of recordation
thereof; or
c. Tenant shall default in the observance or performance of any of the
covenants and agreements required to be performed and observed by Tenant
hereunder for a period of thirty (30) days after notice to Tenant in
writing of such default (or if such default shall reasonably take more than
thirty (30) days to cure, Tenant shall not have commenced the same within
the thirty (30) days and diligently prosecuted the same to completion); or
d. Sixty (60) days have elapsed after the commencement of any proceeding
by or against Tenant, whether by the filing of a petition or otherwise,
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or future
Federal Bankruptcy Act or any other present or future applicable federal,
state or other statute or law, whereby such proceeding shall not have been
dismissed (provided, however, that the non-dismissal of any such proceeding
shall not be a default hereunder so long as all of Tenant's covenants and
obligations hereunder are being performed by or on behalf of Tenant); then
Landlord shall be entitled to its election (unless Tenant shall cure such
default prior to such election), to exercise concurrently or successively,
any one or more of the following rights:
I. Terminate this Lease by giving Tenant notice of termination, in which
event this Lease shall expire and terminate on the date specified in such
notice of termination, with the same force and effect as though the date so
specified were the date herein originally fixed as the termination date of
the term of this Lease, and all rights of Tenant under this Lease and in
and to the Premises shall expire and terminate, and Tenant shall remain
liable for all obligations under this Lease arising up to the date of such
termination, and Tenant shall surrender the Premises to Landlord on the
date specified in such notice; or
ii. Terminate this Lease as provided herein and recover from Tenant all
damages Landlord may incur by reason of Tenant's default, including,
without limitation, a sum which, at the date of such termination,
represents the then value of the excess, if any, of (a) the Minimum Rent,
Percentage Rent, Taxes and all other sums which would have been payable
hereunder by Tenant for the period commencing with the day following the
date of such termination and ending with the date herein before set for the
expiration of the full term hereby granted, over (b) the aggregate
reasonable rental value of the Premises for the same period, all of which
excess sum shall be deemed immediately due and payable; or
iii. Without terminating this Lease, declare immediately due and payable
all Minimum Rent, Taxes, and other rents and amounts due and coming due
under this Lease for the entire remaining term hereof, together with all
other amounts previously due, at once; provided, however, that such payment
shall not be deemed a penalty or liquidated damages but shall merely
constitute payment in advance of rent for the remainder of said term. Upon
making such payment, Tenant shall be entitled to receive from Landlord all
rents received by Landlord from other assignees, tenants, and subtenants on
account of said Premises during the term of this Lease, provided that the
monies to which tenant shall so become entitled shall in no event exceed
the entire amount actually paid by Tenant to Landlord pursuant to the
preceding sentence less all costs, expenses and attorney's fees of Landlord
incurred in connection with the reletting of the Premises; or
iv. Without terminating this Lease, and with or without notice to Tenant,
Landlord may in its own name but as agent for Tenant enter into and upon
and take possession of the Premises or any part thereof, and, at landlord's
option, remove persons and property therefrom, and such property, if any,
may be removed and stored in a warehouse or elsewhere at the cost of, and
for the account of Tenant, all without being deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned thereby, and
Landlord may rent the Premises or any portion thereof as the agent of
Tenant with or without advertisement, and by private negotiations and for
any term upon such terms and conditions as Landlord may deem necessary or
desirable in order to relet the Premises. Landlord shall in no way be
responsible or liable for any rental concessions or any failure to rent the
Premises or any part thereof, or for any failure to collect any rent due
upon such reletting. Upon such reletting, all rentals received by Landlord
from such reletting shall be applied: first, to the payment of any
indebtedness (other than any rent due hereunder) from Tenant to Landlord;
second, to the payment of any costs and expenses of such reletting,
including, without limitation, brokerage fees and attorney's fees and costs
of alterations and repairs; third, to the payment of rent and other charges
then due and unpaid hereunder; and the residue, if any shall be held by
Landlord to the extent of and for application in payment of future rent as
the same may become due and payable hereunder. In reletting the Premises as
aforesaid, Landlord may grant rent concessions and Tenant shall not be
credited therefor. If such rentals received from such reletting shall at
any time or from time to time be less than sufficient to pay to Landlord
the entire sums then due from Tenant hereunder, Tenant shall pay any such
deficiency to Landlord. Such deficiency shall, at Landlord's option, be
calculated and paid monthly. No such reletting shall be construed as an
election by Landlord to terminate this Lease unless a written notice of
such election has been given to Tenant by Landlord. Notwithstanding any
such reletting without termination, Landlord may at any time thereafter
elect to terminate this Lease for any such previous default provided same
has not been cured; or
v. Without liability to Tenant or any other party and without constituting
a constructive or actual eviction, suspend or discontinue furnishing or
rendering to Tenant any property, material, labor, Utilities or other
service, whether Landlord is obligated to furnish or render the same, so
long as Tenant is in default under this Lease; or
vi. Allow the Premises to remain unoccupied and collect rent from Tenant
as it comes due; or
vii. Foreclose the security interest described herein, including the
immediate taking of possession of all property on or in the Premises; or
viii. Pursue such other remedies as are available at law or equity.
e. Landlord's pursuit of any remedy of remedies, including without
limitation, any one or more of the remedies stated herein shall not (1)
constitute an election of remedies or preclude pursuit of any other remedy
or remedies provided in this Lease or any other remedy or remedies provided
by law or in equity, separately or concurrently or in any combination, or
(2) sever as the basis for any claim of constructive eviction, or allow
Tenant to withhold any payments under this Lease.
Section 2. LANDLORD'S Self Help. If in the performance or observance of
any agreement or condition in this Lease contained on its part to be
performed or observed and shall not cure such default within thirty (30)
days after notice from Landlord specifying the default (or if such default
shall reasonably take more than thirty (30) days to cure, shall diligently
prosecuted the same to completion), Landlord may, at its option, without
waiving any claim for damages for breach of agreement, at any time
thereafter cure such default for the account of Tenant, and any amount paid
or contractual liability incurred by Landlord in so doing shall be deemed
paid or incurred for the account of Tenant and Tenant agrees to reimburse
Landlord therefor and save Landlord harmless therefrom. Provided, however,
that Landlord may cure any such default as aforesaid prior to the
expiration of said waiting period, without notice to Tenant if any
emergency situation exists, or after notice to Tenant, if the curing of
such default prior to the expiration of said waiting period is reasonably
necessary to protect the Leased Premises or Landlord's interest therein, or
to prevent injury or damage to persons or property. If Tenant shall fail to
reimburse Landlord upon demand for any amount paid for the account of
Tenant hereunder, said amount shall be added to and become due as a part of
the next payment of rent due and shall for all purposes be deemed and
treated as rent hereunder.
Section 3. TENANT'S Self Help. If Landlord shall default in the
performance or observance of any agreement or condition in this Lease
contained on its part to be performed or observed, and if Landlord shall
not cure such default within thirty (30) days after notice from Tenant
specifying the default (or, if such default shall reasonably take more than
thirty (30) days to cure, and Landlord shall not have commenced the same
within the thirty (30) days and diligently prosecuted the same to
completion), Tenant may, at its option, without waiving any claim for
damages for breach of agreement, at any time thereafter cure such default
for the account of Landlord and any amount paid or any contractual
liability incurred by Tenant in so doing shall be deemed paid or incurred
for the account of Landlord and Landlord shall reimburse Tenant therefor
and save Tenant harmless therefrom. Provided, however, that Tenant may cure
any such default as aforesaid prior to the expiration of said waiting
period, without notice to Landlord if an emergency situation exists, or
after notice to Landlord , if the curing of such default prior to the
expiration of said waiting period is reasonably necessary to protect the
Leased Premises or Tenant's interest therein or to prevent injury or damage
to persons or property. If Landlord shall fail to reimburse Tenant upon
demand for any amount paid or liability incurred for the account of
Landlord hereunder, said amount or liability may be deducted by Tenant from
the next or any succeeding payments of rent due hereunder; provided,
however, that should said amount or the liability therefor be disputed by
Landlord, Landlord may contest its liability or the amount thereof, through
arbitration or through a declaratory judgment action and Landlord shall
bear the cost of the filing fees therefor.
ARTICLE XVII - TITLE
Section l. Subordination. Tenant shall, upon the request of Landlord in
writing, subordinate this Lease to the lien of any present or future
institutional mortgage upon the Leased Premises irrespective of the time of
execution or the time of recording of any such mortgage. Provided, however,
that as a condition to such subordination, the holder of any such mortgage
shall enter first into a written agreement with Tenant in form suitable for
recording to the effect that:
a. in the event of foreclosure or other action taken under the mortgage by
the holder thereof, this Lease and the rights of Tenant hereunder shall not
be disturbed but shall continue in full force and effect so long as Tenant
shall not be in default hereunder, and
b. such holder shall permit insurance proceeds and condemnation proceeds
to be used for any restoration and repair required by the provisions of
Articles XIII, XIV or XV, respectively. Tenant agrees that if the
mortgagee or any person claiming under the mortgagee shall succeed to the
interest of Landlord in this Lease, Tenant will recognize said mortgagee or
person as its Landlord under the terms of this Lease, provided that said
mortgagee or person for the period during which said mortgagee or person
respectively shall be in possession of the Leased Premises and thereafter
their respective successors in interest shall assume all of the obligations
of Landlord hereunder. The word "mortgage", as used herein includes
mortgages, deeds of trust or other similar instruments, and modifications,
and extensions thereof. The term "institutional mortgage" as used in this
Article XVII means a mortgage securing a loan from a bank (commercial or
savings) or trust company, insurance company or pension trust or any other
lender institutional in nature and constituting a lien upon the Leased
Premises.
Section 2. Quiet Enjoyment. Landlord covenants and agrees that upon
Tenant paying the rent and observing and performing all of the terms,
covenants and conditions on Tenant's part to be observed and performed
hereunder, that Tenant may peaceably and quietly have, hold, occupy and
enjoy the Leased Premises in accordance with the terms of this Lease
without hindrance or molestation from Landlord or any persons lawfully
claiming through Landlord .
Section 3. Zoning and Good Title. Landlord warrants and represents, upon
which warranty and representation Tenant has relied in the execution of
this Lease, that Landlord is the owner of the Leased Premises, in fee
simple absolute, free and clear of all encumbrances, except for the
easements, covenants and restrictions of record as of the date of this
Lease. Such exceptions shall not impede or interfere with the quiet use and
enjoyment of the Leased Premises by Tenant. Landlord further warrants and
covenants that this Lease is and shall be a first lien on the Leased
Premises, subject only to any Mortgage to which this Lease is subordinate
or may become subordinate pursuant to an agreement executed by Tenant, and
to such encumbrances as shall be caused by the acts or omissions of Tenant;
that Landlord has full right and lawful authority to execute this Lease for
the term, in the manner, and upon the conditions and provisions herein
contained; that there is no legal impediment to the use of the Leased
Premises as set out herein; that the Leased Premises are not subject to any
easements, restrictions, zoning ordinances or similar governmental
regulations which prevent their use as set out herein; that the Leased
Premises presently are zoned for the use contemplated herein and throughout
the term of this lease may continue to be so used therefor by virtue of
said zoning, under the doctrine of "non-conforming use", or valid and
binding decision of appropriate authority, except, however, that said
representation and warranty by Landlord shall not be applicable in the
event that Tenant's act or omission shall invalidate the application of
said zoning, the doctrine of "non-conforming use" or the valid and binding
decision of the appropriate authority. Landlord shall furnish without
expense to Tenant, within thirty (30) days after written request therefor
by Tenant, a title report covering the Leased Premises showing the
condition of title as of the date of such certificate, provided, however,
that Landlord's obligation hereunder shall be limited to the furnishing of
only one such title report.
Section 4. Licenses. It shall be the Tenant's responsibility to obtain
any and all necessary licenses and the Landlord shall bear no
responsibility therefor; the Tenant shall promptly notify Landlord of the
fact that it has obtained the necessary licenses in order to prevent any
delay to Landlord in commencing construction of the Leased Premises.
ARTICLE XVIII - EXTENSIONS/WAIVERS/DISPUTES
Section l. Extension Period. Any extension hereof shall be subject to the
provisions of Article III hereof.
Section 2. Holding Over. In the event that Tenant or anyone claiming
under Tenant shall continue occupancy of the Leased Premises after the
expiration of the term of this Lease or any renewal or extension thereof
without any agreement in writing between Landlord and Tenant with respect
thereto, such occupancy shall not be deemed to extend or renew the term of
the Lease, but such occupancy shall continue as a tenancy at will, from
month to month, upon the covenants, provisions and conditions herein
contained. The rental shall be the rental in effect during the term of this
Lease as extended or renewed, prorated and payable for the period of such
occupancy.
Section 3. Waivers. Failure of either party to complain of any act or
omission on the part of the other party, no matter how long the same may
continue, shall not be deemed to be a waiver by said party of any of its
rights hereunder. No waiver by either party at any time, express or
implied, of any breach of any provision of this Lease shall be deemed a
waiver of a breach of any other provision of this Lease or a consent to any
subsequent breach of the same or any other provision. If any action by
either party shall require the consent or approval of the other party, the
other party's consent to or approval of such action on any one occasion
shall not be deemed a consent to or approval of said action on any
subsequent occasion or a consent to or approval of any other action on the
same or any subsequent occasion. Any and all rights and remedies which
either party may have under this Lease or by operation of law, either at
law or in equity, upon any breach, shall be distinct, separate and
cumulative and shall not be deemed inconsistent with each other, and no one
of them, whether exercised by said party or not, shall be deemed to be an
exclusion of any other; and any two or more or all of such rights and
remedies may be exercised at the same time.
Section 4. Disputes. It is agreed that, if at any time a dispute shall
arise as to any amount or sum of money to be paid by one party to the other
under the provisions hereof, the party against whom the obligation to pay
the money is asserted shall have the right to make payment "under protest"
and such payment shall not be regarded as a voluntary payment and there
shall survive the right on the part of the said party to institute suit for
the recovery of such sum. If it shall be adjudged that there was no legal
obligation on the part of said party to pay such sum or any part thereof,
said party shall be entitled to recover such sum or so much thereof as it
was not legally required to pay under the provisions of this Lease. If at
any time a dispute shall arise between the parties hereto as to any work to
be performed by either of them under the provisions hereof, the party
against whom the obligation to perform the work is asserted may perform
such work and pay the costs thereof "under protest" and the performance of
such work shall in no event be regarded as a voluntary performance and
shall survive the right on the part of the said party to institute suit for
the recovery of the costs of such work. If it shall be adjudged that there
was no legal obligation on the part of the said party to perform the same
or any part thereof, said party shall be entitled to recover the costs of
such work or the cost of so much thereof as said party was not legally
required to perform under the provisions of this Lease and the amount so
paid by Tenant may be withheld or deducted by Tenant from any rents herein
reserved.
Section 5. TENANT'S Right to cure LANDLORD'S Default. In the event that
Landlord shall fail, refuse or neglect to pay any mortgages, liens or
encumbrances, the judicial sale of which might affect the interest of
Tenant hereunder, or shall fail, refuse or neglect to pay any interest due
or payable on any such mortgage, lien or encumbrance, Tenant may pay said
mortgages, liens or encumbrances, or interest or perform said conditions
and charge to Landlord the amount so paid and withhold and deduct from any
rents herein reserved such amounts so paid, and any excess over and above
the amounts of said rents shall be paid by Landlord to Tenant.
Section 6. Notices. All notices and other communications authorized or
required hereunder shall be in writing and shall be given by mailing the
same by certified mail, return receipt requested, postage prepaid, and any
such notice or other communication shall be deemed to have been given when
received by the party to whom such notice or other communication shall be
addressed. If intended for Landlord the same will be mailed to the address
herein above set forth or such other address as Landlord may hereafter
designate by notice to Tenant, and if intended for Tenant, the same shall
be mailed to Tenant at the address herein above set forth, or such other
address or addresses as Tenant may hereafter designate by notice to
Landlord.
ARTICLE XIX - PROPERTY DAMAGE
Section l. Loss and Damage. Notwithstanding any contrary provisions of
this Lease, Landlord shall not be responsible for any loss of or damage to
property of Tenant or of others located on the Leased Premises, except
where caused by the willful act or omission or negligence of Landlord , or
Landlord's agents, employees or contractors, provided, however, that if
Tenant shall notify Landlord in writing of repairs which are the
responsibility of Landlord under Article VII hereof, and Landlord shall
fail to commence and diligently prosecute to completion said repairs
promptly after such notice, and if after the giving of such notice and the
occurrence of such failure, loss of or damage to Tenant's property shall
result from the condition as to which Landlord has been notified, Landlord
shall indemnify and hold harmless Tenant from any loss, cost or expense
arising therefrom.
Section 2. Force Majeure. In the event that Landlord or Tenant shall be
delayed or hindered in or prevented from the performance of any act other
than Tenant's obligation to make payments of rent, additional rent, and
other charges required hereunder, by reason of strikes, lockouts,
unavailability of materials, failure of power, restrictive governmental
laws or regulations, riots, insurrections, the act, failure to act, or
default of the other party, war or other reason beyond its control, then
performance of such act shall be excused for the period of the delay and
the period for the performance of such act shall be extended for a period
equivalent to the period of such delay. Notwithstanding the foregoing,
lack of funds shall not be deemed to be a cause beyond control of either
party.
ARTICLE XX - MISCELLANEOUS
Section 1. Assignment and Subletting. Under the terms and conditions
hereunder, Tenant shall have the absolute right to transfer and assign this
lease or to sublet all or any portion of the Leased Premises or to cease
operating Tenant's business on the Leased Premises provided that at the
time of such assignment or sublease Tenant shall not be in default in the
performance and observance of the obligations imposed upon Tenant
hereunder, and in the event that Tenant assigns or sublets this property
for an amount in excess of the rental amount then being paid, then Landlord
shall require as further consideration for the granting of the right to
assign or sublet, a sum equal to fifty (50%) percent of the difference
between the amount of rental to be charged by Tenant to Tenant's sublessee
or assignee and the amount provided for herein, payable in a manner
consistent with the method of payment by the sublessee or assignee to the
Tenant, and/or fifty (50%) percent of the consideration paid or to be paid
to Tenant by Tenant's sublessee or assignee. Landlord must consent in
writing to any such sublessee or assignee, although such consent shall not
be unreasonably withheld. The use of the Leased Premises by such assignee
or sublessee shall be expressly limited by and to the provisions of this
lease.
Section 2. Fixtures. All personal property, furnishings and equipment
presently and all other trade fixtures installed in or hereafter by or at
the expense of Tenant and all additions and/or improvements, exclusive of
structural, mechanical, electrical, and plumbing, affixed to the Leased
Premises and used in the operation of the Tenant's business made to, in or
on the Leased Premises by and at the expense of Tenant and susceptible of
being removed from the Leased Premises without damage, unless such damage
be repaired by Tenant, shall remain the property of Tenant and Tenant may,
but shall not be obligated to, remove the same or any part thereof at any
time or times during the term hereof, provided that Tenant, at its sole
cost and expense, shall make any repairs occasioned by such removal.
Section 3. Estoppel Certificates. At any time and from time to time,
Landlord and Tenant each agree, upon request in writing from the other, to
execute, acknowledge and deliver to the other or to any person designated
by the other a statement in writing certifying that the Lease is unmodified
and is in full force and effect, or if there have been modifications, that
the same is in full force and effect as modified (stating the
modifications), that the other party is not in default in the performance
of its covenants hereunder, or if there have been such defaults, specifying
the same, and the dates to which the rent and other charges have been paid.
Section 4. Invalidity of Particular Provision. If any term or provision
of this Lease or the application hereof to any person or circumstance
shall, to any extent, be held invalid or unenforceable, the remainder of
this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision
of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
Section 5. Captions and Definitions of Parties. The captions of the
Sections of this Lease are for convenience only and are not a part of this
Lease and do not in any way limit or amplify the terms and provisions of
this Lease. The word "Landlord" and the pronouns referring thereto, shall
mean, where the context so admits or requires, the persons, firm or
corporation named herein as Landlord or the mortgagee in possession at any
time, of the land and building comprising the Leased Premises. If there is
more than one Landlord, the covenants of Landlord shall be the joint and
several obligations of each of them, and if Landlord is a partnership, the
covenants of Landlord shall be the joint and several obligations of each of
the partners and the obligations of the firm. Any pronoun shall be read in
the singular or plural and in such gender as the context may require.
Except as in this Lease otherwise provided, the terms and provisions of
this Lease shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
Nothing contained herein shall be deemed or construed by the parties hereto
nor by any third party as creating the relationship of principal and agent
or of partnership or of a joint venture between the parties hereto, it
being understood and agreed that neither any provision contained herein,
nor any acts of the parties hereto, shall be deemed to create any
relationship between the parties hereto other than the relationship of
Landlord and Tenant.
Section 6. Brokerage. No party has acted as, by or through a broker in
the effectuation of this Agreement, except as set out hereinafter.
Section 7. Entire Agreement. This instrument contains the entire and only
agreement between the parties, and no oral statements or representations or
prior written matter not contained in this instrument shall have any force
and effect. This Lease shall not be modified in any way except by a writing
executed by both parties.
Section 8. Governing Law. All matters pertaining to this agreement
(including its interpretation, application, validity, performance and
breach) in whatever jurisdiction action may be brought, shall be governed
by, construed and enforced in accordance with the laws of the State of
______________. The parties herein waive trial by jury and agree to submit
to the personal jurisdiction and venue of a court of subject matter
jurisdiction located in _____________________ County, State of
______________. In the event that litigation results from or arises out of
this Agreement or the performance thereof, the parties agree to reimburse
the prevailing party's reasonable attorney's fees, court costs, and all
other expenses, whether or not taxable by the court as costs, in addition
to any other relief to which the prevailing party may be entitled. In such
event, no action shall be entertained by said court or any court of
competent jurisdiction if filed more than one year subsequent to the date
the cause(s) of action actually accrued regardless of whether damages were
otherwise as of said time calculable.
Section 9. Contractual Procedures. Unless specifically disallowed by law,
should litigation arise hereunder, service of process therefor may be
obtained through certified mail, return receipt requested; the parties
hereto waiving any and all rights they may have to object to the method by
which service was perfected.
Section 10. Extraordinary remedies. To the extent cognizable at law, the
parties hereto, in the event of breach and in addition to any and all other
remedies available thereto, may obtain injunctive relief, regardless of
whether the injured party can demonstrate that no adequate remedy exists at
law.
Section 11. Reliance on Financial Statement. Tenant shall furnish
concurrently with the execution of this lease, a financial statement of
Tenant prepared by an accountant. Tenant, both in corporate capacity, if
applicable, and individually, hereby represents and warrants that all the
information contained therein is complete, true, and correct. Tenant
understands that Landlord is relying upon the accuracy of the information
contained therein. Should there be found to exist any inaccuracy within the
financial statement which adversely affects Tenant's financial standing, or
should Tenant's financial circumstances materially change, Landlord may
demand, as additional security, an amount equal to an additional two (2)
months' rent, which additional security shall be subject to all terms and
conditions herein, require a fully executed guaranty by a third party
acceptable to Landlord, elect to terminate this Lease, or hold Tenant
personally and individually liable hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and
year first above written or have caused this Lease to be executed by their
respective officers thereunto duly authorized.
Signed, sealed and delivered in the presence of:
______________________________ ______________________________
"LANDLORD" "TENANT"
____________________________
Witness
______________________________
Witness
STATE OF
COUNTY OF
EXHIBIT "A" LEGAL DESCRIPTION
The following described real property, together with all improvements thereon:
which has a street address as follows:
Initials:
LANDLORD ______________
TENANT ______________
EXHIBIT "B" TENANT PLANS AND SPECIFICATIONS
Initials:
LANDLORD _____________
TENANT _____________
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