GROUND LEASE AGREEMENT

Transcription

GROUND LEASE AGREEMENT
The Ground Lease (“Lease”) is made as of the ___ day of ________, 200__ (“Effective
Date”), by and between the City of Pocatello, Idaho, a political subdivision of the State of Idaho
(“Landlord”), and ________________________________, a ___________ corporation
(“Tenant”). In consideration of the mutual agreements herein contained, Landlord and Tenant
hereby agree as follows:
1.
Definitions. As used herein, the following terms have the meanings set forth in
this section. Certain other terms have the meanings set forth therefor elsewhere in this Lease.
1.1
Building: The building to be constructed by Tenant on Parcel __, to be
shown single-hatched on the Site Plan of Parcel _____. Landlord and Tenant shall determine
and agree upon the exact location of the Building on the Leased Parcel in accordance with the
process described in Section 1.6.2.
1.2
Business Center: That certain business center located in the City of
Pocatello, County of Jackson, State of Idaho, described in Exhibit A substantially as shown on
the Site Plan attached as Exhibit B and commonly known as the “____________.”
1.3
Business Center Manager (“Manager”): The Developer, so designated
pursuant to the Master Development Agreement between the Landlord and
_________________________, dated ___________ ___, 200__.
1.4
Commencement Date: Unless first terminated by notice as set forth in
Section 1.6.2 or extended by notice as set forth in Section 1.6.3 hereinbelow, the
Commencement Date shall be ________ __, 200__ or the date Tenant receives all necessary
permits required under this Lease from the appropriate governmental agencies, whichever date
occurs first.
1.5
Common Area: All areas and facilities within the Business Center not
appropriated to the exclusive occupancy of tenants, including all vehicle parking spaces or areas,
roads, traffic lanes, driveways, sidewalks, pedestrian walkways, landscaped areas, signs, service
delivery facilities, common storage areas, common utility facilities, and all other areas for
non-exclusive use in the Business Center which may from time to time exist; provided, however,
that if the REA (as defined in Section 1.14 below) contains a definition of the Common Area or
areas of the Business Center, such definition shall serve as the definition of the Common Area
for purposes of this Lease. The term “Parcel Common Area” shall mean all areas and facilities
within a Leased Parcel which are appropriated to the exclusive use of the Tenant and any of the
Tenant’s sub-lessee’s.
1.6
Conditions Precedent to Commencement of Lease Term: The
commencement of the Lease Term is conditioned upon the satisfaction of the following
conditions:
1.6.1
That Landlord has provided Tenant with a copy of a survey of
Leased Parcel ___ (the “Survey”);
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1.6.2
That Tenant hereby acknowledges that (i) as of the Effective
Date, Tenant has reviewed and approved all zoning, deed restrictions, ordinances, regulations,
easements, rights, or other legal requirements or deficiencies in access, ingress or egress,
utilities, curb cuts, sanitary sewers, drainage, environmental conditions, a preliminary title report
covering Parcel __ and all exceptions thereto, and all other matters pertaining to Parcel _____;
(ii) that on or before __________ ____, 200__, Tenant shall have provided to Landlord for
review and approval its prototypical plans for the Building to be constructed on such Leased
Parcel which prototypical plans shall include scaled elevations, scaled exterior footprint, exterior
design concepts, material selections, and color for the exterior surfaces of the proposed Building
and all other site improvements including, without limitation, signage, parking areas, vehicular
and pedestrian circulation and pavement treatments, landscaping, site lighting, and light poles
and illumination.
In the event Landlord has not received notice from Tenant before __________ ____,
200__, that any matter set forth in Section 1.6.1 or 1.6.2 will impair the full use of the Leased
Parcel by Tenant for its intended purpose, Tenant shall be deemed to have waived its right to
terminate this Lease for failure of the Conditions Precedent set forth in Sections 1.6.1 and 1.6.2.
In the event Tenant fails to submit its prototypical plans to Landlord and as required by
Section 1.5.2 above, Landlord shall have the right to terminate this Lease by delivery of written
notice thereof to Tenant.
1.6.3
That on or before __________ ____, 200__ (the “Permit
Deadline”), Tenant shall have notified Landlord whether or not Tenant has obtained, or is
satisfied that Tenant will be able to obtain the following: all rights and privileges necessary or
reasonably desirable for the construction of improvements on the Leased Parcel in accordance
with the plans and specifications submitted by Tenant to Landlord for Landlord’s approval and
for Tenant’s proposed use of the Leased Parcel for said business, including, but not limited to, all
needed licenses, special use permits, and building and other permits (hereinafter collectively
referred to as the “Permits”). So long as Tenant has proceeded with diligence to prepare and
submit to all appropriate governmental agencies all information necessary to obtain the Permits
as set forth herein, the Permit Deadline may be extended by Tenant giving written notice to
Landlord of its election to so extend the Permit Deadline by the same number of days as Tenant
is delayed in obtaining such rights, privileges, and Permits by matters outside the reasonable
control of Tenant, other than financial hardship. In no event, however, shall such extension
exceed ninety (90) days. In the event Landlord has not received such notice from Tenant within
five (5) days of the Permit Deadline, Tenant shall be deemed to have waived its right to
terminate this Lease for failure of any condition precedent set forth in this Section 1.6.3.
Tenant shall diligently pursue the obtaining of all Permits and Landlord agrees to
reasonably cooperate with Tenant to obtain such Permits. Tenant shall indemnify Landlord and
reimburse Landlord for any and all costs and expenses reasonably incurred by Landlord,
including attorney fees, in providing such cooperation.
1.6.4
Tenant shall keep the Leased Parcel free and clear of any liens
resulting from any activity contemplated in this Section 1.6, shall repair any damage of the
Leased Parcel resulting from the performance of any such activity, and shall defend with counsel
reasonably satisfactory to Landlord and indemnify Landlord from and against all liability,
claims, demands, damages, or costs of any kind whatsoever, including attorney fees, arising out
of or connected with any such activity on or about the Leased Parcel or the Business Center prior
to the commencement of the Lease Term hereof. Tenant’s covenants set forth in this
Section 1.6.4 shall survive and be enforceable following termination of this Lease.
1.7
Exhibits: The following exhibits, which are attached hereto and
incorporated herein by this reference:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
— Legal Description of the Airport Industrial Park
— Site Plan of the Business Center
— Parcel Site Plan
— Sublease Form
— Legal Description of the Leased Parcel
— Tenant’s Work
— Tenant’s Off-Parcel Work
1.8
Fair Market Rental Rate: The “Fair Market Rental Rate” shall be
calculated by multiplying the Fair Market Value of the Leased Parcel times the Landlord’s
then-current Rate of Return (as defined herein). “Fair Market Value” shall mean the most
probable cash sales price which the Leased Parcel would bring in a competitive and open market
under conditions requisite to a fair sale, considering the following factors: (i) the parties are
typically motivated; (ii) the parties are well informed or well advised and each is acting in what
they consider their own best interests; (iii) a reasonable time is allowed for exposure in the open
market; (iv) payment is made in cash, U.S. dollars, or other financial arrangements comparable
thereto; (v) the price represents the normal consideration for the Leased Parcel unaffected by
special or creative financing or concessions granted by anyone associated with the transaction;
(vi) the property is clean and uncontaminated; (vii) the Leased Parcel’s value is based on its
then-current uses; and (viii) the Landlord Improvements (as defined below) are of high quality,
up-to-date, and of full economic and functional condition. Furthermore, to the extent available,
sale or lease transactions used in the determination of Fair Market Value shall be of property
with comparable infrastructure improvements, including, but not limited to, location, road
access, utilities, common areas and other comparable site amenities. Fair Market Value shall be
determined exclusive of the value (positive or negative) attributable to improvements installed
and paid for by the Manager or Tenant (as the case may be) (“Tenant’s Improvements”), but
inclusive of the value attributable to all improvements owned, installed or paid for by the Landlord
(“Landlord Improvements”). The “Rate of Return” shall mean the Landlord’s current rate of
return as of the beginning date of the applicable portion of a Lease Term, as used by the
Landlord as a multiplier of the Fair Market Value of land owned by the Landlord at or near the
Leased Parcel to determine the lease rate of such land. Once this Rate of Return for is
established, it will not change for the duration of the applicable Lease Term. As of the Effective
Date, the Landlord’s Rate of Return is _____ percent (___%).
1.9
Hazardous Materials: Petroleum, asbestos, polychlorinated biphenyls,
radioactive materials, radon gas, or any chemical, material, or substance defined as or included in
the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely
hazardous waste,” “restricted hazardous waste,” “toxic substances,” or words of similar import
under any applicable federal, state, or local law, ordinance, statute, rule, or regulation, including
the Federal Water Pollution Act, as amended (33 USC 1251 et seq.), the Resource Conservation
and Recovery Act, as amended (42 USC 6901 et seq.), the Comprehensive Environmental
Response, Compensation and Liability Act, as amended (42 USC 9601 et seq.), and the
Hazardous Materials Transportation Act, as amended (49 USC 1801 et seq.).
1.10 Lease Term: The original Term of this Lease (as defined in Section 2.4)
and as extended, if at all, by Tenant’s exercise of any options pursuant to Section 2.5.
1.11 Lease Year: During the Lease Term, each period commencing on
January 1 and ending on the following December 31, except that the first Lease Year shall
commence on the Commencement Date and end on the following December 31, and the last
Lease Year shall end on the last day of the Lease Term.
1.12 Leased Parcel: The parcel that is leased by Landlord to Tenant pursuant
to the terms of this Lease. The Leased Parcel is comprised of (i) land and improvements to be
exclusively used by Tenant (and its permitted subtenants) (collectively, “Building Area”); and
(ii) Parcel Common Area. A map showing the proposed Building Area and Parcel Common
Area is attached hereto as Exhibit C.
1.13 Parcels ____ through ____: The real property located in the Business
Center is more particularly described in Exhibit A hereto containing approximately ________
(__) acres. The “Parcels” shall mean one (1) or more Parcels ___ through ___ shown on the
attached Exhibit B, and are the developable sites within the Business Center. The Parcels may
be sublet by Tenant to third-party subtenants under the terms and conditions of the “Sublease”
attached hereto as Exhibit D.
1.14 REA: That certain Reciprocal Easement Agreement (“REA”) affecting
the Business Center, made and entered into as of __________ , 2003, by the City as amended
from time to time. A copy of the REA has been previously provided to Tenant.
1.15
Rent Commencement Date:
1.15.1
For Parcels ___ through ___, the date which is the earlier of
(i) the date tenant enters into a sub-ground lease for the Leased Parcel; or (ii) the date the
Building on the Parcel is occupied.
1.15.2
For Parcels ___ through ___, the date which is ______ (___)
days after the date this Lease is signed by Landlord and Tenant.
1.16 Site Plan of the Business Center: That Site Plan attached hereto as
Exhibit B, showing the Business Center.
1.17 Tenant’s Proportionate Share (Business Center): Tenant’s
Proportionate Share (Business Center) shall be _____ percent (_____%).
2.
Demise of Leased Parcel; Right to Use Common Area; Receiving and
Deliveries; Lease Term; Options to Extend.
2.1
Demise of Leased Parcel. Landlord hereby leases the Leased Parcel to
Tenant and Tenant hereby leases the Leased Parcel from Landlord, at the rental rate set forth in
this Lease, for the term and on the other terms and conditions stated in this Lease. A legal
description of the Leased Parcel is attached hereto as Exhibit E.
2.2
Right to Use Common Area. As an appurtenance to the Leased Parcel,
Tenant and its invitees and licensees shall have the right to use the Common Area of the
Business Center for ingress and egress to and from the Leased Parcel and for automobile parking
on a non-exclusive basis and in common with all others entitled to such use, upon the terms and
conditions set forth in the REA with respect to such use. In addition, Tenant’s use of the
Common Area shall be subject to such reasonable rules and regulations as Manager may from
time to time promulgate.
2.3
Receiving and Deliveries. All receiving of goods and materials at the
Building, all delivery of goods and merchandise to the Building, and all removal of garbage and
refuse from the Building shall be made only by way of the Building’s rear service door, if any, or
the service delivery facilities on the Leased Parcel designated by Manager for Tenant’s use.
2.4
Lease Term. This Lease, and Tenant’s occupancy of the Leased Parcel
pursuant thereto, shall be for an original term commencing on the Lease Term Commencement
Date and continuing approximately for fifty (50) years; provided, however, the expiration date of
the original term shall be December 31, 2053 (the “Original Term”). On the Lease Term
Commencement Date, this Lease and each and every provision hereof shall be effective;
provided, however, that Tenant’s obligation to pay monthly rent in accordance with Section 3
shall not commence until the Rent Commencement Date.
At such time as the parties have determined the Lease Term Commencement Date
and the Rent Commencement Date, Landlord and Tenant shall execute an amendment hereto,
establishing such dates for all purposes under this Lease.
2.5
Options to Extend Term. Tenant is hereby given the option to extend the
original Lease Term, on all the terms and provisions contained in this Lease, for three (3)
separate and successive five- (5-) year periods (each an “Extended Term”), by giving notice of
Tenant’s intent to exercise such option (“Option Notice”) to Landlord at least nine (9) months,
but not more than one (1) year, before the date the original Lease Term (or the Extended Term
then in effect) would otherwise expire. If Tenant is in default on the date of giving an Option
Notice, such Option Notice shall be totally ineffective; and if Tenant is in default on the date an
Extended Term is to commence, such Extended Term shall not commence and this Lease shall
expire at the end of the original Lease Term (or the Extended Term then in effect). The monthly
Minimum Rent payable by Tenant during the Extended Terms shall be as set forth in Section 3.
3.
Rent. Tenant shall pay the following rents, without demand, deduction, or offset,
by checks or drafts payable to the City of Pocatello and mailed to Landlord, Attn: Accounting
Department, PO Box 237, Pocatello, Idaho 97601, or as otherwise may be designated in writing
by Landlord:
3.1
Minimum Rent. Tenant shall pay a minimum rent (“Minimum Rent”)
which shall be paid monthly in advance on the Rent Commencement Date and thereafter on the
first (1st) day of each calendar month during the Lease Term in the following amounts:
3.1.1
Subject to the Minimum Rent abatement provision set forth in
Section 3.1.2 below, during the period beginning on the Rent Commencement Date and
continuing for _____ (__) consecutive months thereafter, the monthly Minimum Rent shall as
follows:
Month
Amount
1-___
$__________
__-___
$__________
__-___
$__________
3.1.2
The Minimum Rent specified in Section 3.1.1 above shall be
abated for the period between the Rent Commencement Date until the date: (i) Tenant enters into
a subground lease for the Leased Parcel; or (ii) the Building constructed on the Leased Parcel is
occupied, whichever date is the first to occur (“Minimum Rent Abatement Period”). Such rental
abatement shall be personal to Tenant and may not be assigned or otherwise passed on, directly
or indirectly, to any other person or entity.
3.2
Adjustment of Minimum Rent.
3.2.1
The Minimum Rent set forth in Section 3.1.1 shall be increased
on the first (1 ) day of the _______ (__) Lease Year, and thereafter on the first (1st) day of each
third (3rd) Lease Year thereafter and as of the first day of each Extended Term by an amount
equal to the Fair Market Rental Rate (“Adjustment Dates”).
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3.2.2
Objection by Tenant to Fair Market Rental Rate. Unless a
written notice objecting to the Fair Market Rental Rate is received by the Landlord within
sixty (60) days after written notice of the new basic rent amount is delivered to Tenant, the Fair
Market Rental Rate proposed by the Landlord shall become the new basic rent for the applicable
portion of a Term (subject to adjustment on subsequent Adjustment Dates) and shall not be
subject to challenge by Tenant. If Tenant objects to the Fair Market Rental Rate determined by
the Landlord and the parties cannot come to an agreement on Fair Market Rental Rate within
sixty (60) days after the Landlord’s receipt of written notice objecting to a proposed basic rent,
the parties will agree upon and retain an Idaho licensed MAI appraiser to determine the current
Fair Market Value of the Leased Parcel. The appraiser selected shall have a minimum of
ten (10) years’ commercial property appraisal experience, including experienced in appraising
commercial properties of the nature of the Leased Parcel. If the parties cannot agree on an
appraiser within fifteen (15) days after notice by either party to the other requesting selection of
an appraiser, then upon application by either party, an appraiser shall be appointed by any judge
of the Circuit Court in Bannock County, Idaho. The parties may submit briefs and arguments in
support of or against the appointment of a particular appraiser but any such presentation must be
done in an expedited manner, without request for continuances, and the decision of the presiding
Circuit Court judge shall be final and may not be appealed. The appraiser’s finding of Fair
Market Rental Rate shall be conclusively binding on the parties. The parties shall share equally
in the cost of the appraiser. Tenant shall have the right to object to the Fair Market Rental Rate
of the Leased Parcel applicable to each Adjustment Date, and in the event that Tenant does
object to the Landlord’s determination of the Fair Market Rental Rate of the Leased Parcel
applicable to any Adjustment Date, the procedure for determination of the appropriate Fair
Market Rental Rate shall be the same as set forth above.
3.2.3
Effective Date of Adjustment; Payment of Adjustments.
Each periodic three- (3-) year adjustment to the Minimum Rent will be effective and payable as
of the Adjustment Date. Tenant agrees to pay the new rate upon receipt of the Landlord’s
invoice containing the new rate, retroactive to the Adjustment Date, within thirty (30) days after
receipt of the Landlord’s invoice.
3.2.4
Minimum Rent at Beginning of Extension Term. If Tenant
does not wish to pay the Fair Market Rental Rate after the determination of Fair Market Rental
Rate at the beginning of any Extension Term, Tenant can elect to withdraw its option to extend
the Lease. If the appraisal is not completed as of the first (1st) day of the Extension Term, Tenant
shall pay the Minimum Rent amount proposed by the Landlord and will be entitled to a refund, if
the appraised Fair Market Rental Rate is determined to be less, within thirty (30) days of the date
of the appraiser’s decision.
3.2.5
Minimum Rent for any partial calendar month immediately
following the Rent Commencement Date and/or prior to the expiration (or sooner termination) of
the Lease Term and immediately prior to and following any change in Minimum Rent shall be
prorated based on a thirty- (30-) day month.
4.
Common Area.
4.1
Manager’s Obligation to Maintain. Manager shall, at all times during
the Lease Term, keep the Common Area, Parcel Common Area and the Business Center neat,
clean, and free of trash and other debris, and shall maintain the Common Area and
Parcel Common Area and the Business Center in a state of good condition and repair and, in any
event, in compliance with the applicable standards with respect thereto as set forth in the REA.
4.2
Payment of Common Area Charges.
4.2.1
Reimbursement by Tenant. Tenant shall pay Landlord, as
additional rent, Tenant’s Proportionate Share (Business Center) of all amounts paid by Landlord
in accordance with the REA for the maintenance, repair, and operation of the Common Area,
including insurance covering the Common Area, together with a management fee not to exceed
____ percent (__%) of all such amounts. Such costs shall include landscaping, repaving,
resurfacing, restriping, bumpers, directional signs and other markers, replacements, repairs,
painting, lighting and other utilities, cleaning, trash removal, replacement of equipment, the cost
of any and all insurance required by the REA, such other insurance that Manager may deem
reasonably necessary or appropriate, fire protection, security, and other costs that Manager
deems necessary or appropriate for the maintenance and operation of the Common Area. Such
costs shall not include any costs incurred by Manager as the result of changes made in the
Common Area for the sole purpose of accommodating the specific requirements of the occupants
of parcels other than Leased Parcel. Such reimbursement hereunder shall be deemed additional
rent payable hereunder, which Tenant shall pay to Manager within thirty (30) days after receipt
of written demand therefor, which demand shall be accompanied by reasonable supporting
documentation. Manager shall keep accurate records showing in reasonable detail all expenses
paid in operating, maintaining, repairing, and insuring the Common Area. For a period of
one (1) year after the expiration of the Lease Year to which they relate, Manager shall make such
records available to Tenant for inspection during normal business hours at an office of Manager.
Upon reasonable advance notice to Manager, Tenant or its authorized agent shall have the right
to examine and audit Manager’s books, records, papers, and documents showing the expenses
which Manager has paid in operating, maintaining, repairing, and insuring the Common Area.
Tenant shall keep such information confidential. Tenant shall pay all costs in connection with
any audit by Tenant, unless Manager’s billing of Common Area charges to Tenant exceeds the
amount that Manager is entitled to charge Tenant by more than five percent (5%), in which event
the reasonable cost of such audit shall be borne by Manager. In addition, each party shall
immediately pay to the other party any and all sums shown by the audit to be owed to the other
party.
4.2.2
Estimate of Common Area Charges. At any time during the
Lease Term, Manager may give to Tenant a written estimate (or a revised estimate) of Tenant’s
Proportionate Share (Business Center) of Common Area charges for the balance of the current
Lease Year or the next succeeding Lease Year. In such event, Tenant shall pay to Manager such
initial (or revised) estimated amount in equal monthly installments, or other periodic installments
as may be specified by Manager, in advance, as additional rent during the specified Lease Year.
Within ninety (90) days after the end of each Lease Year (and after the date of expiration or
sooner termination of this Lease), Manager shall furnish to Tenant a statement showing in
reasonable detail the Common Area charges paid by Manager for the operation, maintenance,
and repair of the Common Area during such Lease Year (or portion thereof prior to the
expiration or sooner termination of this Lease); within thirty (30) days thereafter, the parties shall
make any payment or allowance necessary to adjust the total of Tenant’s estimated payments to
the correct amount of Tenant’s Proportionate Share (Business Center) of the Common Area
charges as shown by such statement.
5.
Use.
5.1
Permitted Use. The Leased Parcel shall be used for any use permitted
pursuant to the terms of the REA or for such other lawful use as Landlord reasonably approves in
writing so long as any such use (i) does not conflict with any exclusive rights of tenants, or
occupants of the Business Center as of the Effective Date; and (ii) does not conflict with the
REA. Tenant shall use the Leased Parcel in such a way as not to annoy other tenants or
occupants of the Business Center or create a nuisance or cause the cancellation of any insurance
policy covering the Leased Parcel. In no event shall the Leased Parcel be used for the sale of
alcoholic beverages without the prior written consent of Landlord, which Landlord may withhold
in its sole discretion.
5.2
REA. Tenant acknowledges receipt of a copy of the REA. During the
Lease Term, Tenant, and its permitted sublessees, concessionaires, and licensees, shall not
violate any of the provisions of the REA. Tenant shall indemnify, defend, and hold Landlord
harmless from and against any and all losses, costs, actions, claims, expenses (including
reasonable attorney fees), and liabilities arising out of or related to any act or omission by Tenant
or its permitted sublessees, concessionaires, or licensees (whether or not said act or omission is
consented to by Landlord) that constitutes a violation of the REA or puts Landlord in violation of
the REA. If requested by Landlord, Tenant shall, at its sole cost and with counsel chosen by
Landlord, undertake the defense of any action against Landlord as a consequence of said
violation.
6.
Condition of Leased Parcel; Tenant’s Work.
6.1
Condition of Leased Parcel. Tenant hereby affirms that Tenant has
inspected the Leased Parcel and agrees to accept the same “AS IS, WITH ALL FAULTS” at its
current grade, free of all debris, but otherwise in its present condition and without any
representation or warranty by or from Landlord as to the Condition of the Leased Parcel (as that
term is defined in Section 6.2 below), the fitness of the Leased Parcel for Tenant’s use, or the
zoning of the Leased Parcel. Landlord desires to lease the Leased Parcel with limited continuing
liability following the disposition. Accordingly, Tenant shall lease the Leased Parcel on an “AS
IS, WITH ALL FAULTS” basis. If this Lease required Landlord to make any representation or
warranty, express or implied, relating to the Condition of the Leased Parcel, or to accept any
liability continuing with respect to the Condition of the Leased Parcel, Landlord would have
required a materially higher rental rate for the Leased Parcel or refused to lease the Leased
Parcel. Tenant acknowledges and represents:
6.1.1
Tenant has taken the “AS IS, WITH ALL FAULTS” basis for
lease of the Leased Parcel into account in agreeing to the rental rate of the Leased Parcel, and the
Lease rate incorporates whatever adjustment deemed necessary to reflect the risk Tenant is
assuming in leasing the Leased Parcel “AS IS, WITH ALL FAULTS.”
6.1.2
Landlord did not develop or construct any buildings on the
Leased Parcel.
6.1.3
Tenant assumes and accepts the entire responsibility for
interpreting and assessing the Condition of the Leased Parcel, including the extent, if any, to
which the information contained in documents furnished to or obtained by Tenant is accurate,
complete, or should be relied upon by Tenant.
6.1.4
Except as may be stated expressly in this Lease, Landlord and
Landlord's agents and employees shall have absolutely no liability for any warranty,
representation, or other promise or statement regarding the Condition of the Leased Parcel.
6.1.5
Prior to the Effective Date, at Tenant's sole expense, Tenant had
the right and opportunity to conduct, or cause its agents, consultants, contractors or employees to
conduct all inspections, tests, analysis, studies, reviews, appraisals, and other investigations
(“Inspections”) related to the Condition of the Leased Parcel which Tenant deemed necessary or
desirable to lease the Leased Parcel, taking into account the “AS IS, WITH ALL FAULTS” basis
of the transaction which this Lease contemplates. Tenant shall rely solely on the Inspections, its
own expertise and experience in commercial real estate projects, and the advice of experts and
consultants engaged by Tenant.
6.2
The term “Condition of the Leased Parcel” means all material facts about
the Leased Parcel, including but not limited to:
6.2.1
The quality, nature, and adequacy of the physical condition of
the Leased Parcel, including but not limited to sewage or utility components and systems;
irrigation; access; and the presence of any Hazardous Materials thereon;
6.2.2
The development potential, economic feasibility, habitability,
merchantability and fitness, suitability, or adequacy of the Leased Parcel for any particular use;
6.2.3
Compliance or non-compliance of Landlord or any other person
or the Leased Parcel in accordance with, and the contents of, applicable codes, laws, restrictions,
regulations, agreements, covenants, conditions, restrictions, licenses, permits, approvals, and
applications of or with any governmental authority asserting jurisdiction over the Leased Parcel,
including but not limited to those relating to zoning, building, public works, subdivision,
subdivision sales, and Hazardous Materials, including, but not limited to those enumerated in
Section 6.2.1; and
6.2.4
Compliance or non-compliance of Landlord or any other person
or the Leased Parcel in accordance with, and the contents of, all other applicable agreements,
covenants, conditions, and restrictions, development agreements, and other instruments and
documents governing the use, management, and operation of the Leased Parcel.
6.3
Tenant’s Work. Tenant agrees that at no expense to Landlord, Tenant
shall construct on the Leased Parcel a new building and appurtenances (including all
non-Building Areas adjacent to the Building that are to be used by Tenant within the Building lot
lines shown on the Site Plan) in accordance with the scope of work attached as Exhibit F hereto
(“Tenant’s Work”). The Tenant’s Work shall be constructed in accordance with the REA and
with plans and specifications to be prepared at Tenant’s expense by a licensed architect and
engineer who shall be required to agree as provided in Section 17.3 hereof. Prior to
commencement of construction of the Tenant’s Work, said plans and specifications shall be
submitted to Landlord and shall be subject to Landlord’s approval, which Landlord shall not
unreasonably withhold or delay. Tenant agrees that such plans and specifications shall, after
their presentation to and approval by Landlord, be presented to all governmental agencies and
authorities having jurisdiction with respect thereto and shall, prior to their presentation to
Landlord for final approval, reflect in full all requirements of such governmental authorities and
of the REA.
Tenant, as soon as reasonably possible after the commencement of this Lease and
the approval of plans and specifications by the parties, but in no event later than
__________ (_____) days after receipt by Tenant of a building permit for the Building, shall
commence the construction of the Tenant’s Work and diligently prosecute the same to
completion. Upon completion of construction, Tenant shall install all such Building equipment,
exterior and interior signs, and make such further alterations or improvements in or about the
Leased Parcel and the proposed Building as Tenant may desire and as may be necessary to
operate the Leased Parcel in accordance with Section 5 hereof.
Upon the expiration or prior termination of the Term Lease, Tenant may leave the
Building and other structures previously approved by Landlord on the Leased Parcel but, subject
to Landlord’s reasonable approval, Tenant shall be permitted to redecorate or otherwise remodel
the Building in such manner as will avoid its continuing to resemble the then-current use of the
Leased Parcel. Tenant shall deliver the Leased Parcel and all improvements thereon to Landlord
in good and leaseable condition.
Prior to commencing the construction of the Building, Tenant shall deliver to
Landlord a certificate evidencing that Tenant’s contractor has purchased and shall maintain at all
times during the construction of the Building Comprehensive General Public Liability and
Property Damage Insurance and Broad Form Builders Risk insurance naming both Landlord and
Tenant as additional insureds and otherwise complying with the specifications for insurance set
forth in Section 13 hereof.
6.4
Tenant’s Additional Work. In addition to Tenant’s Work, Tenant agrees
that Tenant shall construct additional improvements on the Common Area portions of
Parcels _____, ____ and _____, in accordance with the scope of work and Site Plan attached as
Exhibit G hereto (“Tenant’s Off-Parcel Work”). Tenant’s Off-Parcel Work shall be constructed
in accordance with the REA and with plans and specifications to be prepared at Tenant’s expense
by a licensed architect and engineer. Prior to commencement of construction of Tenant’s
Off-Parcel Work, said plans, specifications, site plan, and estimated cost of construction of
Tenant’s Off-Parcel Work shall be submitted to Landlord and shall be subject to Landlord’s
reasonable review and approval. Tenant shall, at Tenant’s sole cost and expense pay all costs
incurred in performing Tenant’s Off-Parcel Work.
7.
Maintenance and Repair. Landlord shall have no obligation to perform or pay
the cost of any maintenance or repair of or to the Leased Parcel or the Tenant’s Work on the
Tenant’s Off-Parcel Work (collectively, the “Improvements”); and Tenant, at its expense, shall
keep the Improvements at all times during the Lease Term in a state of good condition and repair
(including the heating, ventilating and air conditioning unit, and the plumbing, mechanical, and
electrical systems, if any, in the Building).
8.
Alterations. Tenant may make any alterations, remodeling, improvements, or
other changes (collectively, “Alterations”) in or to the Building and/or Improvements with
Landlord’s prior written consent, which consent Landlord shall not unreasonably withhold or
delay. Tenant shall not be required to obtain Landlord’s consent to make nonstructural, internal
Alterations that cost less than Fifty Thousand and No/100 Dollars ($50,000.00). In making any
Alteration, Tenant shall comply with all of the following:
8.1
Prior to commencing the Alteration, the Alteration shall be approved by
all appropriate governmental agencies, and all applicable permits and authorizations shall be
obtained (and a copy of each given to Landlord);
8.2
At least twenty (20) days before the date Tenant intends to commence the
Alteration, Tenant shall submit to Landlord for approval (or for review, if Landlord’s approval is
not required under this Section 8) final plans and specifications and working drawings for the
proposed Alteration;
8.3
Before commencing the Alteration, Tenant shall deliver to Landlord a
certificate evidencing that Tenant’s contractor has purchased and shall maintain at all times
during the construction of the Alteration Comprehensive General Public Liability and Property
Damage Insurance and Broad Form Builder’s Risk insurance, naming both Landlord and Tenant
as additional insureds, and otherwise complying with the specifications set forth in Section 13;
8.4
The Alteration shall be completed with due diligence and in compliance
with the plans, specifications, and working drawings as approved by the local government
agency and Landlord (if Landlord’s approval is required under this Section 8), and in compliance
with all applicable laws;
8.5
With respect to any Alteration costing in excess of Fifty Thousand and
No/100 Dollars ($50,000.00), Tenant shall obtain payment and performance bonds in form,
substance, and amounts reasonably satisfactory to Landlord, with a bonding company reasonably
acceptable to Landlord. Tenant shall deliver copies of such bonds to Landlord no later than
ten (10) days prior to commencement of the Alteration; and
8.6
Within sixty (60) days after completion of the Alteration, Tenant shall
submit to Landlord final as built plans and specifications for the Alteration or a modification to
the original plans indicating any changes or deviations therefrom.
9.
Surrender of Leased Parcel. Subject to the provisions of Section 6.3 hereof, at
the expiration or sooner termination of the Lease Term, Tenant shall surrender the Leased Parcel
and Improvements in good condition and repair, allowance being made for ordinary wear and
tear and damage by casualty.
10.
Waiver.
Trade Fixtures and Personal Property; Signs; Landlord’s Consent and
10.1 Tenant may place or install in the Building such trade fixtures and
equipment as it deems desirable for the conduct of its business therein. To the extent not
prohibited by the REA, other recorded restrictions or governmental rules or regulations, and
subject to Landlord’s prior written approval which Landlord shall not unreasonably withhold,
Tenant shall have the right to place signs in, on, or about the Leased Parcel; Tenant shall remove
any such signs upon the expiration or sooner termination of the Lease Term. Personal property,
fixtures, and equipment used in the conduct of Tenant’s business (as distinguished from fixtures
and equipment used in connection with the operation and maintenance of the Building and
Leased Parcel) placed by Tenant on or in the Building or Leased Parcel shall not become a part
of the realty, even if nailed, screwed, or otherwise fastened to the Building, but shall retain their
status as personal property and may be removed by Tenant at any time. Any trade fixtures,
equipment, or personal property (including signs) belonging to Tenant shall be deemed
abandoned and shall become the property of Landlord without any payment therefor, if not
removed within thirty (30) days after the expiration or sooner termination of the Lease Term.
10.2 A monument sign will be permitted on the Leased Parcel as more
particularly described on the Site Plan attached as Exhibit D hereto. The design of such
monument sign shall be in form and content as mutually agreed upon between Landlord and
Tenant.
11.
Mechanic’s Liens. Tenant shall not permit any mechanic’s, materialmen’s, or
other liens to stand against the Leased Parcel for work or materials furnished in connection with
the construction of the Tenant’s Work, Tenant’s Off-Parcel Work, Alterations, or Improvements,
or any portion thereof or interest therein, or any maintenance, repairs, or alterations undertaken
on the Leased Parcel.
12.
Utility Charges. Tenant shall pay all charges for electricity, water, gas,
telephone, and other utility services furnished to the Improvements, Building or Leased Parcel
during the Lease Term. In the case of any utility services that are not separately metered and
charged directly to Tenant, but are metered jointly with other parcels, Tenant shall pay a pro-rata
share of all charges, based on Tenant’s usage of such utility services, as shall be equitably
determined by Manager. Landlord shall not be liable in damages or otherwise for any failure or
interruption of any utility service being furnished to the Leased Parcel or any Building or other
Improvement constructed thereon, and no such failure or interruption shall entitle Tenant to
terminate this Lease or to any abatement of rent.
13.
Property and Other Insurance; Releases and Subrogation Waivers.
13.1 Tenant’s Insurance. During the Lease Term, at its sole cost and expense,
Tenant shall maintain in full force and effect the following types of insurance:
13.1.1
Fire and Extended Coverage: Policy or policies of fire
insurance (with extended coverage endorsement) from a financially responsible fire and casualty
insurance company for an amount not less than one hundred percent (100%) of the full insurable
replacement value of the Building, the Improvements and appurtenances. Tenant shall provide
Landlord with copies of such policy, policies, or certificate of such coverage. Such policy or
policies of insurance shall provide that the amount thereof shall not be reduced and that none of
the provisions, agreements, or covenants contained therein shall be modified or cancelled by the
insurance company or companies without providing thirty (30) days’ prior written notice to all
parties to this Lease. Such policy or policies of insurance may also cover loss or damage to
equipment, fixtures, and other personal property on the Leased Parcel removable by Tenant at
the end of the Lease Term or any Extended Term. The insurance proceeds applicable to such
removable items shall be payable directly to Tenant in the event of a casualty.
13.1.2
Liability and Workers’ Compensation: Comprehensive
General Liability Insurance or Commercial General Liability Insurance applying to the use and
occupancy of the Leased Parcel and Improvements, and all parts thereof and areas adjacent
thereto, and the business operated by Tenant, or any other occupant, on the Leased Parcel and/or
Improvements. Such insurance shall include Broad Form Contractual Liability insurance
coverage insuring all of Tenant’s indemnity obligations under this Lease. Such coverage shall
have a minimum combined single limit of liability of at least Two Million and No/100 Dollars
($2,000,000.00) and a general aggregate limit of Two Million and No/100 Dollars
($2,000,000.00), which limits shall apply only to Tenant’s use and occupancy of the Leased
Parcel and Improvements pursuant to this Lease and to no other sites or facilities of Tenant. All
such policies shall be (i) written to apply to all bodily injury, property damage, personal injury,
and other covered loss, however occasioned, occurring during the policy term; (ii) shall be
endorsed to add Landlord as an additional insured; (iii) and shall provide that such coverage shall
be primary and that any insurance maintained by Landlord shall be excess insurance only. Such
coverage shall also contain endorsements (i) deleting any employee exclusion on personal injury
coverage; (ii) including employees as additional insureds; (iii) providing for coverage of
employer’s automobile non-ownership liability; and (iv) providing for product liability coverage.
All such insurance shall: (i) provide for severability of interest; (ii) provide that an act or
omission of one of the named or additional insureds shall not reduce or avoid coverage to the
other named or additional insureds; and (iii) afford coverage for all claims based on acts,
omissions, injury, and damage, which claims occurred or arose (or the onset of which occurred
or arose) in whole or in part during the policy period.
Tenant shall also maintain Workers’ Compensation insurance in accordance with
the laws of the State of Idaho and employer’s liability insurance with a limit of not less than
those amounts required by applicable Idaho law.
If at any time during the Lease Term the amount or scope of insurance coverage
that Tenant is required to carry under this Section 13 is, in Landlord’s reasonable judgment,
materially less than the amount or types of insurance coverage typically carried by owners or
lessees of similar properties located in the vicinity of the Leased Parcel, then Landlord shall have
the right to require Tenant to increase the amount and scope of insurance coverage required
herein. All insurance policies described herein shall be endorsed to provide Landlord with
thirty (30) days’ notice of cancellation or change in terms.
All insurance policies required to be carried by Tenant under this Lease shall be
written by companies rated A-9 or better in the most recent edition of “Best’s Insurance Guide”
and authorized to do business in the State of Idaho. Tenant may insure the Building under a
“blanket policy” of casualty insurance so long as such policy provides that any casualty or any
other property covered by such “blanket policy” shall not impair or reduce the coverage required
by this Lease for the Leased Parcel and Improvements. Tenant shall deliver to Landlord on or
before the Lease Term Commencement Date, and thereafter at least thirty (30) days before the
expiration dates of expiring policies, certified copies of its insurance policies or a certificate
evidencing the same, issued by the insurer thereunder and showing that all premiums have been
paid for the full policy period. If Tenant fails to procure such insurance or to deliver such
policies or certificates, then Landlord may, at its option and in addition to any other remedies
provided by this Lease, procure the same for the account of Tenant, and Tenant shall pay the cost
thereof to Landlord as additional rent.
13.2 Releases and Waivers of Subrogation. Notwithstanding any other
provision of this Lease, each party hereby releases and waives any and all rights to recover from
or proceed against the other party and its officers, directors, employees, agents, or
representatives for loss or damage to any property of the releasing party or any person claiming
through the releasing party arising from any cause required to be insured against by the releasing
party under this Section 13, but only to the extent that insurance proceeds are actually made
available to such releasing party and only so long as the foregoing release and waiver does not
adversely affect any insurance carried by such releasing party. The parties shall cause their
insurance policies to contain a waiver of subrogation consistent with the foregoing, provided that
it is obtainable at no extra cost. If such a waiver of subrogation is obtainable only upon the
payment of an additional premium, then the party attempting to obtain such waiver shall give
written notice to the other party and shall be required to obtain such waiver only if the other
party pays the cost of obtaining such waiver.
14.
Damage by Casualty.
14.1 Notification to Landlord. If the Building is damaged or destroyed by
fire, flood, tornado, earthquake, or by the elements or through any casualty or otherwise, this
Lease shall continue in full force and effect and Tenant at its expense shall promptly restore and
repair or rebuild the same, to the same condition that existed immediately prior to such damage
or destruction. Notwithstanding the foregoing, if the Building and/or Improvements is damaged
by an uninsured casualty in an amount in excess of twenty-five percent (25%) of its replacement
value, Tenant may elect to demolish the Building and remove all debris from the Leased Parcel
instead of reconstructing the Building. In such event, this Lease shall remain in full force and
effect and Tenant shall continue to perform all of its obligations hereunder.
14.2 In the event the Building is damaged or destroyed by fire, flood, tornado,
earthquake, or by the elements through any casualty or otherwise to the extent that it is, in the
opinion of Tenant, untenantable or incapable of use for the conduct of Tenant’s business, and
such damage or destruction occurs within the last twenty-four (24) months of the original Lease
Term or of any Extended Term, Tenant shall have the option, exercisable within thirty (30) days
following such damage or destruction, of terminating this Lease effective upon delivery of
written notice to Landlord. If Tenant terminates this Lease as above provided, Tenant shall
deliver or cause to be delivered to Landlord all proceeds of all insurance on the Building, and
Tenant shall promptly assign its rights to such proceeds to Landlord, cooperate in obtaining
payment from the insurance carrier, and endorse any payment representing any proceeds of such
insurance to Landlord.
14.3 Other than as set forth herein, Tenant hereby waives the provisions of any
law providing that a ground lease, lease or sublease shall terminate on the destruction or partial
destruction of the Building, or affording Tenant any right or benefit that is not expressly set forth
in this Section 14. Tenant and Landlord each hereby agree that Tenant’s rights in the event of
destruction or partial destruction of the Building shall be governed solely by the provisions of
this Lease.
15.
Condemnation.
15.1 Entire or Substantial Taking. If the whole of the Leased Parcel and
Improvements or more than __________ percent (_____%) of the existing parking spaces in the
Common Area located on the Leased Parcel shall be taken by condemnation or eminent domain
or, if such condemnation or taking prevents ingress and egress to and from the Leased Parcel
from the existing access points on ____________ Street or ___________ Street, and if Landlord
cannot within thirty (30) days thereafter provide alternative access to the Leased Parcel, then
Tenant shall have the option to terminate the Lease by delivering written notice of such election
within ninety (90) days of the earlier of the date of the vesting of title in the taking entity or the
day possession shall be taken by such entity. In the event Tenant fails to deliver such written
notice within said __________- (_____-) day period, Tenant shall be deemed to have waived its
right to terminate this Lease. If, however, more than __________ percent (_____%), but less
than all, of the Leased Parcel and Improvements shall be taken during the Lease Term or any
Extended Term for any public or quasi-public use under any governmental law, ordinance, or
regulation, or by right of eminent domain, or shall be sold to the condemning authority under
threat of condemnation (any of such events being hereinafter referred to as a “taking”), and if
such taking renders the remainder unusable for Tenant’s business use, in the reasonable opinion
of Tenant, Tenant shall have the option of terminating this Lease by giving Landlord written
notice on or before the date of the vesting of title in the condemning authority or the day
possession shall be taken by such condemning authority, whichever is earlier. In the event of
any other form of taking or interference of the Leased Parcel, the Lease shall continue in full
force and effect.
15.2 Award. In the event of a taking which does not give rise to an option to
terminate, or in such an event and Tenant elects not to terminate, Landlord shall, to the extent the
award received by Landlord as the result of such taking (which term “Award” shall include any
settlement or purchase price under a sale in lieu of condemnation), promptly restore, replace, or
repair the Parcel Common Area (but not the Building) to the same condition as existed
immediately prior to such taking insofar as is reasonably possible. If the award shall exceed the
amount spent or to be spent promptly to effect such restoration, repair, or replacement, such
excess amount shall be credited against rental as such rentals become due under the Lease, but
only to the extent of diminution in rental value for the combined original Lease Term and any
Extended Term, and any portion of the Award not used for restoration, replacement, or repair
and in excess of the diminution in such rental value for the combined original Lease Term and
any Extended Term shall be divided between Landlord and Tenant based upon their respective
pro-rata contributions to the cost of the Improvements. In the event of a taking which gives rise
to an option to terminate and Tenant elects to terminate, any condemnation award for the value
of the Improvements constructed by Tenant on the Leased Parcel shall be allocated to Tenant for
the unamortized portion of the actual cost of Tenant’s Work for which Tenant was not
reimbursed by Landlord (which shall be amortized over a fifteen- (15-) year period), and then the
remainder to Landlord. Notwithstanding anything to the contrary contained in this Section 15,
Tenant may, at Tenant’s sole cost and expense, pursue any damages incurred specifically by
Tenant in any condemnation proceeding or action.
16.
Tenant’s Default.
16.1 Events of Default. Tenant shall be in default hereunder in the event of
any of the following (“Events of Defaults”):
16.1.1
Tenant fails to make any payment of rent, additional rent, or any
other sum or amount payable hereunder when due, and such failure shall continue for five (5)
days after written notice thereof is given by Landlord to Tenant, its agent, or attorney;
16.1.2
Tenant fails to perform any other obligation to be performed by
Tenant hereunder and such failure shall continue for thirty (30) days after written notice thereof
is given to Tenant by Landlord or its agent or attorney (except in the case of an emergency, in
which case Landlord shall only be required to give such notice as is reasonable under the
circumstances);
16.1.3
Tenant abandons and vacates the Leased Parcel or the
Improvements;
16.1.4
Tenant admits in writing of its inability to pay its debts as they
become due; or if Tenant files any petition or institutes any proceedings under the Bankruptcy
Code (the “Act”), either as such Act now exists or under any amendment thereof which may
hereafter be enacted, or under any other act or acts, either as bankrupt, insolvent, or petitioner,
wherein or whereby Tenant seeks to be adjudicated a bankrupt or to be discharged from any or
all of its debts, to effect a plan of reorganization thereunder, seeks protection under the
rehabilitation provisions of the Act, for any other similar relief, or if any such petition or
proceeding of the same or similar kind or character be filed or taken against Tenant and such
petition or proceeding is not dismissed within sixty (60) days after the filing or commencement
of such petition or proceeding;
16.1.5
Appointment of a receiver for all or a substantial part of the
business of Tenant by any court, and such petition or proceeding is not set aside or dismissed, or
the appointment of said receiver revoked within sixty (60) days of the filing of said petition,
proceeding, or the appointment of said receiver; or
16.1.6
Tenant makes an assignment for the benefit of creditors or
permits any committee or representative of Tenant’s creditors to oversee Tenant’s business, or if
an attachment or execution is levied against Tenant’s fixtures or merchandise in the Building and
the same is not released within sixty (60) days after levy.
16.1.7
Notwithstanding the foregoing, Tenant shall not be deemed in
default hereunder in the event the nature of Tenant’s alleged default is such that more than
thirty (30) days are required for its cure so long as Tenant has commenced such performance
within such thirty- (30-) day period and, thereafter, diligently prosecutes the same to completion
in less than ninety (90) days from the date of default. In no event shall a failure by Tenant to pay
rent or any other sum due hereunder be deemed a default, the nature of which requires more than
thirty (30) days for its cure.
16.2 Remedies. Upon the occurrence of any of the Events of Default described
in Section 16.1, Landlord, at its option, may: (i) cure such default on behalf of Tenant; (ii) cancel
and terminate this Lease upon written notice to Tenant, thereby terminating Tenant’s right to
possession; or (iii) re-enter upon the Leased Parcel, either with or without process of law and
without demand for possession thereof, and remove all persons, goods, chattels, and equipment
therefrom, using such force as is necessary, and repossess and enjoy the Leased Parcel, without
prejudice to any remedy or claim for arrears of rent or breach of covenant or agreement. If
Landlord elects to cure a default of Tenant, then Tenant shall reimburse to Landlord all expenses
incurred by Landlord in curing such default within ten (10) days after receipt from Landlord of a
billing therefor. Any property removed by Landlord may be stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant. Should Landlord decide to re-enter the
Leased Parcel as herein provided, or should it take possession pursuant to legal proceedings or
pursuant to any notice provided by law, Landlord may either terminate this Lease or, from time
to time, without terminating this Lease, make all reasonable attempts to mitigate its damages and
to relet the Leased Parcel or any part thereof for such term or terms and at such rental or rentals
and upon such other commercially reasonable terms and conditions as Landlord, in its sole
discretion, deems advisable, with the right to make alterations and repairs to the Leased Parcel
and Improvements. Rentals received by Landlord from such reletting shall be applied: (i) to the
payment of any indebtedness, other than rent, due hereunder from Tenant to Landlord; (ii) to the
payment of any cost of such reletting and to the payment of the cost of any alterations or repairs;
(iii) to the payment of rent due and unpaid hereunder; and (iv) the residue, if any, shall be held
by Landlord and applied to the payment of future rent as it may become due and payable
hereunder. Should rentals received from such reletting during any month be less than that agreed
to by Tenant hereunder, then Tenant shall pay any deficiency to Landlord. Such deficiency shall
be calculated and paid monthly. Tenant shall also pay Landlord, as soon as ascertained, the costs
and expenses incurred by Landlord in such reletting or in the making of such alterations and
repairs. No such re-entry or taking possession of said Leased Parcel or Improvements by
Landlord shall be construed as an election on its part to terminate this Lease unless written notice
there of is given by Landlord, or unless the termination is by decree of a court of competent
jurisdiction.
16.3 Damages Upon Termination. If Landlord terminates this Lease pursuant
to Section 16.2, then Landlord may exercise all rights and remedies available to a landlord at law
or in equity, including the right to recover from Tenant: (i) the worth at the time of award of
unpaid rent and other amounts payable by Tenant hereunder which had been earned at the time
of termination; (ii) the worth at the time of award of the amount by which unpaid rent and such
other amounts that would have been earned after termination until the time of the award exceeds
the amount of loss of rent and such other amounts that Tenant proves could have been reasonably
avoided; (iii) the worth at the time of award of the amount by which unpaid rent for the balance
of the term after the time of award exceeds the amount of such rental loss that Tenant proves
could be reasonably avoided; and (iv) any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant’s failure to perform its obligations under this
Lease or which, in the ordinary course of things, would be likely to result therefrom. The “worth
at the time of award” of the amounts referred to in clauses (i), (ii), and (iii) shall be computed
with interest at the highest rate allowed by law. As used herein, “time of award” shall mean
either the date upon which Tenant pays to Landlord the amount recoverable by Landlord as
hereinabove set forth, or the date of entry of any determination, order, or judgment of any court
or other legally constituted body determining the amount recoverable, whichever first occurs.
16.4 Lease Provisions Determine Landlord’s Right to Terminate. The
rights of Landlord to terminate this Lease on account of Tenant’s default shall be governed by
the provisions is of this Section 16 rather than by the provisions of any applicable state or federal
law.
17.
Exculpation of Landlord; Tenant’s Indemnification of Landlord.
17.1 Release. Landlord shall not be liable to Tenant for any injury or damage
to Tenant or to the permitted assignees, sublessees, concessionaires, or licensees of Tenant, or to
the agents, employees, or property of Tenant, its permitted assignees, sublessees,
concessionaires, or licensees arising from any cause other than the sole, active negligence or
intentional misconduct of Landlord. In any assignment, sublease, concession, or license, Tenant
shall obtain the written agreement of such assignee, sublessee, concessionaire, or licensee that
the release contained in this Section 17.1 shall apply as between Landlord and such assignee,
sublessee, concessionaire, or licensee.
17.2
Indemnification.
17.2.1
By Tenant. Tenant shall indemnify, defend, protect, and hold
Landlord harmless from and against any and all liability, damage, loss, expense (including
Landlord’s reasonable attorney fees), causes of action, suits, claims, or judgments resulting from
injury or death to person, or damage, deterioration, or loss to property occurring on the Leased
Parcel and/or the Improvements or in the Business Center or on the adjacent public sidewalks
and streets if caused by the act or omission of Tenant or its permitted assignee, sublessees,
concessionaires, or licensees, or their respective agents or employees, or occurring on the Leased
Parcel if caused by the act or omission of Tenant’s invitees or guests.
17.2.2
By Landlord. Landlord shall indemnify, defend, protect and
hold Tenant harmless from and against any and all liability, damage, loss, expense (including
Tenant’s reasonable attorney fees), causes of action, suits, claims, or judgments resulting from
injury or death to person or damage, deterioration, or loss to property occurring in the Business
Center or on the adjacent public sidewalks and streets to the extent, and only to the extent,
Landlord is unable to assert a defense to such claim under the Idaho Tort Claims Act.
17.3 Architects and Engineers Indemnity. Tenant’s agreement with the
architect and/or engineer shall require said architect and/or engineer to defend Landlord and
Tenant, their agents, servants, employees, officers, elected officials, partners, and directors from
any, all, and every demand, claim, assertion of liability, or action arising or alleged to arise out of
the performance of the indemnifying party’s agreement, or any act or omission of the
indemnifying party, its agents, servants, employees, officers, partners, and directors whether
such claim, demand, assertion of liability, or action be for damages, injury to person or property,
including the property of Landlord or Tenant, or death of any person made by any person, group,
or organization, whether employed by the indemnifying party, Landlord, Tenant, or otherwise, or
for the breach of warranty either expressed or implied; and to indemnify Landlord, its agents,
servants, employees, officers, elected officials, partners, and directors, hold them free and
harmless and assume legal liability for any and all loss, damage, liability, costs and expense
(including but not limited to reasonable attorney fees, investigative discovery costs, and court
costs), and all other sums that Landlord, its agents, servants, employees, officers, elected
officials, partners and directors may reasonably pay or become obligated to pay on account of
any, all, and every demand, claim, assertion of liability, or action arising or alleged to arise out of
the performance of the indemnifying party’s agreement, or any act or omission of the
indemnifying party, its agents, servant, employees, officers, partners, and directors whether such
claim, demand, assertion of liability, or action be for damages, or death of any person made by
any person, group, or organization, whether employed by the indemnifying party, the Landlord,
or the Tenant or otherwise, or for the breach of warranty, either expressed or implied; such
indemnification shall also provide that the Landlord and the Tenant shall not, under any
circumstances, be liable or otherwise accountable to the indemnifying party for any damage or
injury to the indemnifying party, or to any agent, or to the property of the indemnifying party,
however caused.
18.
Notices. Any notice permitted or required to be given hereunder shall be in
writing and shall be given by personal delivery, registered or certified United States mail (return
receipt requested), U.S. Express Mail, or overnight air courier, in each case with postage or
required delivery fees prepaid, addressed as follows:
If to Landlord:
With a copy to:
City of Pocatello
Attn: ________________
_____________________
Pocatello, ID _________
Pocatello Airport
Attn: L. J. Nelson
PO Box 4169
Pocatello, ID 83205
If to Tenant:
With a copy to:
The person and place to which notices are sent may be changed from time to time by
either party by written notice given to the other party. If any notice is given by mail, it will be
effective upon actual receipt or refusal to accept such delivery, as indicated by the return receipt;
and if given by personal delivery or by overnight air courier, when received.
19.
Assignment and Subletting.
19.1 Landlord’s Right of Consent. Except as provided in Section 19.4,
Tenant shall not assign its interest under this Lease or sublet the whole or any part of the Leased
Parcel without first obtaining Landlord’s written consent. Landlord’s consent may be withheld
in its sole discretion until Tenant’s construction of the Tenant’s Work and the Tenant’s
Off-Parcel Work has been completed (the “Construction Completion Limitation”). Thereafter,
Landlord shall not unreasonably withhold or delay consent to a transfer, subject to Tenant’s
satisfaction of the requirements that follow. If Tenant desires to assign its interest under this
Lease or sublet the whole or any part of the Leased Parcel, Tenant shall give Landlord thirty (30)
days’ prior written notice thereof (“Tenant’s Notice”). Tenant’s Notice shall: (i) state that
Tenant intends to assign or sublet as of a specific date (the “Termination Date”); (ii) identify the
proposed assignee or subtenant; (iii) include the proposed assignment or sublease agreement
which sets forth all material terms and conditions of the proposed assignment or subletting; and
(iv) be accompanied by certified financial statements and operating history of the proposed
assignee or subtenant for the thirty (30) fiscal years immediately preceding such proposed
assignment or subletting, certified as accurate by the proposed assignee or sublessee, if an
individual, or by an authorized officer, if a corporation, or such other documentation or
information relating to the financial strength and creditworthiness of the proposed assignee or
subtenant as may be reasonably acceptable to Landlord. Any assignment or subletting, other
than as permitted in this Section 19, shall be null and void.
19.2 Excess Consideration. If Landlord consents to a proposed assignment or
sublease pursuant to Section 19.1, then such consent shall be expressly conditioned upon
Tenant’s compliance with the following:
19.2.1
provision of this Lease.
No Default. Tenant shall not then be in default of any term or
19.2.2
Payment of Consideration to Landlord. In the case of a
subletting by Tenant, the rent payable by Tenant to Landlord hereunder during the term of the
sublease shall be increased by a sum equal to one hundred percent (100%) of any and all
consideration received by Tenant from its subtenant in excess of the rent (including all additional
rent) payable by Tenant hereunder, less the smaller amount of (i) the actual costs and expenses
incurred by Tenant in connection with the sublease, which costs and expenses may include,
without limitation, broker commissions, remodeling and/or renovation costs, allowances and/or
cash inducements, relocation costs, and other similar cost and expenses (but not attorney fees); or
(ii) Ten Thousand and No/100 Dollars ($10,000.00) in the case of an assignment of this Lease by
Tenant, Tenant shall pay to Landlord, within five (5) days after receipt by Tenant, one
hundred percent (100%) of any and all consideration received by Tenant for such assignment less
the smaller amount of (a) the actual cost and expenses incurred by Tenant incurs in connection
with the assignment, which costs and expenses may include, without limitation, broker
commissions, remodeling and/or renovation costs, allowances and/or cash inducements,
relocation costs, and other similar costs and expenses (but not attorney fees)); or (b) Ten
Thousand and No/100 Dollars ($10,000.00). As used herein “consideration” includes any
payments received by Tenant on account of such assignment or subletting, rent, and other
payments received by Tenant on account thereof, payments made in consideration of the
operation of Tenant’s business on the Leased Parcel, good will, non-competition covenants, or
any other amounts payable either directly or indirectly in connection with such transaction.
19.3 Exempt Transfers. Subject to the Construction Completion Limitation,
Tenant shall have the right to assign its interest under this Lease or sublet the Leased Parcel, or
any portion thereof, without the consent of Landlord, to any corporation (i) with which it may
merge or consolidate; (ii) that is a parent or subsidiary of Tenant; (iii) in which Tenant owns at
least fifty-one percent (51%) of the then issued shares of stock; or (iv) that is the successor
corporation to Tenant in the event of a corporate reorganization. In the event of any of the
transfers described above, Tenant shall give Landlord forty-five (45) days’ prior written notice of
such proposed transfer, and shall provide Landlord with all documentation reasonably required
by Landlord in order to verify that the proposed transfer falls within this Section 19.3.
19.4 No Release of Tenant. Except as otherwise specified in Section 19.4.1
below, should sublessee either assign its interest under this Lease or sublet the Leased Parcel as
permitted in this Section 19, Tenant shall nevertheless remain liable to Landlord for full payment
of the rent and other charges and full performance of Tenant’s other obligations under this Lease.
No consent by Landlord to any modification, amendment, or termination of this Lease, or
extension, waiver, or modification of payment or performance of any other obligation under this
Lease, or any other action of Landlord with respect to any assignee or sublessee of Tenant, or the
insolvency, bankruptcy, or default of any such assignee or sublessee, shall affect the continuing
liability of Tenant for its obligations and liabilities hereunder, and Tenant waives any defense
arising out of or based thereon. With respect to any assignment or sublease permitted in this
Section 19, such assignment or sublease shall not be valid or effective unless and until Tenant
delivers to Landlord a copy of the fully executed instrument of assignment or the sublease and,
in the case of an assignment, a written agreement in form and substance satisfactory to Landlord
pursuant to which the assignee assumes all the obligations and liabilities of Tenant under this
Lease.
19.4.1
If: (i) construction of the Tenant’s Work and Tenant’s
Off-Parcel Work has been completed; (ii) this Lease has been in effect for five (5) full years and
is in good standing at the time of the Tenant’s Notice; (iii) no violation of this Lease exists
which, with the passage of time, could become an Event of Default; and (iv) Landlord approves
the assignee’s credit, then Tenant shall be released from its obligations under this Lease. If
Tenant is in default of this Lease and the default is cured prior to the effective date of the
assignment or sublease, Tenant will be released when all of the above criteria for release have
been met. In all cases, release of Tenant will be dependent upon Tenant being in compliance
with all other agreements with Landlord related to the Business Center including but not limited
to, the Master Agreement, this Lease and all other ground leases (excluding those ground leases
already assigned to other parties that Tenant no longer has liability under).
20.
Compliance with Laws.
20.1 Laws Generally. Except as otherwise specifically provided in
Section 20.2 with respect to laws relating to the use, generation, installation, release, discharge,
storage, transportation, or disposal of Hazardous Materials, Tenant, at its sole cost and expense,
shall comply with all laws, ordinances, orders, rules, regulations and requirements of all
governmental and quasi-governmental authorities having jurisdiction of the Leased Parcel, and
shall perform all work required to comply therewith.
20.2 Compliance with Environmental Laws. If Tenant learns or has
reasonable cause to believe of the existence of any Hazardous Materials (or underground tanks)
on, about, under, or in the Leased Parcel, then Tenant shall promptly notify Landlord of same.
Neither Tenant nor its agents, employees, or contractors, shall cause or permit Hazardous
Materials to be brought upon, kept or used in, on, or about the Leased Parcel or the Business
Center. Tenant shall immediately notify Landlord of any inquiry, test, investigation, or
enforcement proceeding by or against Tenant involving the Leased Parcel and/or Business
Center and a Hazardous Material.
If, at any time during or after the Lease Term, any underground tanks and/or
Hazardous Materials are found to exist in, on, or under the Leased Parcel or the Improvements
(including the soils and underground water) or to have contaminated the soils, air, or
underground water of the Leased Parcel or the Improvements, then Tenant, at its sole cost and
expense, shall: (i) promptly remove such underground tanks and/or Hazardous Materials; and
(ii) take all such remedial action required by all applicable laws, ordinances, orders, rules,
regulations and requirements of all governmental and quasi-governmental authorities with
jurisdiction. Tenant shall indemnify, defend, protect, and hold harmless the Landlord its
successors, assigns, directors, officers, elected officials, employees, and agents from and against
any and all liability, claims, demands, losses, causes of action, costs, and expenses (including
reasonable attorney fees) arising out of the indemnifying party’s failure to comply with any of its
obligations under this Section 20. Tenant’s obligations pursuant to the foregoing indemnity shall
survive the expiration or sooner termination of this Lease.
21.
Leasehold Mortgage. In the event that Tenant shall pledge the leasehold estate
hereunder as security for an indebtedness in any form whatsoever (such pledge hereinafter
referred to as a “mortgage”), and so long as Tenant gives notice to Landlord (the “Tenant’s
Notice”) that Tenant wishes to amend Section 18 of this Lease (“Notices”) to provide that copies
of all notices to the Tenant shall be given to the holder of the indebtedness secured by such
leasehold estate (“Mortgagee”), and includes in Tenant’s Notice the name and address of such
Mortgagee, then and in such event, the Landlord hereby agrees for the benefit of the Tenant and
such Mortgagee from time to time:
21.1 The Landlord will amend the provisions of Section 18 to provide that
copies of any Notices to the Tenant shall also be given in the same manner to the Mortgagee at
the address specified in the Tenant’s Notice and that no Notice given to the Tenant thereafter
shall be effective as against the Mortgagee unless a copy of the Notice has been given to the
Mortgagee at the address specified in the Tenant’s Notice in the manner provided in Section 18.
21.2 In the event of any default by the Tenant hereunder or under the terms of
the mortgage, the Mortgagee shall have the privilege of performing any of the Tenant’s
covenants or of curing any default by the Tenant or of exercising any election, option, or
privilege confirmed upon the Tenant by the terms of this Lease.
21.3 Notwithstanding anything which may be to the contrary in this Lease,
Landlord shall not terminate this Lease because of any default or breach on the part of Tenant
unless, after service by Landlord of written notice of the default or breach upon Tenant and upon
the Mortgagee (so long as Tenant has previously provided Landlord with the correct name and
address of its Mortgagee), the Mortgagee fails to cure the default within the time period
permitted Tenant under Section 16.1, plus an additional period of time equal to ten (10) days in
the event of any default in the payment of rent or other monetary obligation hereunder, and/or in
the event of any default other than a default in the payment of rent or any other monetary
obligation hereunder, a reasonable period of time thereafter, provided that during the cure period
specified in Section 16.1, the Mortgagee gives Landlord written notice of its intention to cure in
accordance with the provisions of this Section 21.3 and diligently prosecutes such cure to
completion. As used herein, “reasonable time” shall mean to include both the time diligently
necessary to obtain possession of the Leased Parcel and any Improvements, if the Mortgagee
elects to do so (including, without limitation, any time during which the Mortgagee may be
prevented from foreclosing and/or obtaining possession of the Leased Parcel and any
Improvements as a result of bankruptcy proceedings), and the time necessary to cure the default.
Any default of Tenant which cannot for any reason be cured by a Mortgagee shall be deemed to
be cured when the Mortgagee takes possession of the Leased Parcel and any Improvements;
provided, however, that in no event and under no circumstances shall a default consisting solely
of a failure to pay a sum of money be considered a default which cannot be immediately cured
by the Mortgagee.
If this Lease shall terminate for any reason other than the failure of the Mortgagee
to cure the default of Tenant in accordance with the provisions of this Section 21.3 or as the
result of the expiration of this Lease, or this Lease is rejected or disaffirmed pursuant to any
bankruptcy law or other law affecting creditors’ rights, any Mortgagee shall have the right,
exercisable by written notice given to Landlord within sixty (60) days after the effective date of
termination, to enter into a new lease of the Leased Parcel. The term of the new lease shall begin
on the date the Lease terminates and shall continue for the remainder of the Lease Term. The
new lease shall otherwise contain the same terms and conditions as in this Lease, except for the
requirements already performed and no longer applicable. In consideration of the new lease and
as a condition to the right of the Mortgagee or its designee to occupy the Leased Parcel, the
Mortgagee or its designee shall pay to Landlord the amount of rent and any other sums which are
past due as of the date this Lease terminates and the new lease begins and, upon such payment,
shall be subrogate to all rights of Landlord to recover from Tenant the amount so paid. The new
lease shall have the same priority as this Lease relative to other rights or interests in or to the
Leased Parcel. From the date on which any Mortgagee shall serve upon Landlord a notice of the
exercise of its right to a new lease, the Mortgagee may use and enjoy the Leased Parcel without
hindrance by Landlord, provided all delinquent rent and any other past due sums are paid in full
to Landlord as herein provided. Tenant shall reimburse Landlord for all reasonable costs and
expenses (including, without limitation, attorney fees) incurred by Landlord in effecting the
provisions of this Section 21.3;
21.4 The execution and delivery of a leasehold mortgage or deed of trust and a
conditional assignment of this Lease as collateral security therefor shall not be deemed a lease
assignment for any other purpose; and
21.5 Prior to such Mortgagee recording any document against the leasehold
interest of Tenant, Tenant or such Mortgagee shall provide a copy thereof to Landlord for
Landlord’s approval, which approval shall not be unreasonably withheld. In the event Landlord
fails to disapprove such document within ten (10) days of receipt thereof, Landlord shall be
deemed to have approved such document.
22.
Remedies Cumulative. No remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other remedy herein or by law provided, but each
shall be cumulative and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute.
23.
Holding Over. If Tenant, with Landlord’s consent, remains in possession of the
Leased Parcel after the expiration or sooner termination of the Lease Term, such possession by
Tenant shall be deemed to be a month-to-month tenancy terminable on thirty (30) days’ prior
written notice given at any time by either party. During such month-to-month tenancy, Tenant
shall pay all rent and additional rent as and when required by this Lease on or before the
tenth (10th) day of each month; provided, however, that during such month-to-month tenancy, the
Minimum Rent payable pursuant to Section 3 shall be one hundred fifty percent (150%) of the
Minimum Rent payable by Tenant immediately prior to the commencement of the
month-to-month tenancy. All other provisions of this Lease, except those specifying the Lease
Term and any options to extend, shall apply to the month-to-month tenancy.
24.
Taxes. Tenant shall pay semi-annually and at least ten (10) days prior to
delinquency, any and all taxes and assessments that may be assessed or levied on or against the
Leased Parcel, the Building, the Improvements and against any of Tenant’s personal property,
fixtures, or equipment placed on or in the Leased Parcel and/or Building.
If at any time during the Lease Term any governmental authority levies or assesses
against Landlord a tax, fee, assessment or excise on (i) rents (or any other sums payable by
Tenant to Landlord hereunder or on Landlord’s receipt of rent or such other sums); or (ii) the
occupancy of Tenant; or (iii) levies or assesses against Landlord any other tax, fee, or excise,
however described, including a so-called “value added” tax, as a direct substitution in whole or
in part for or in addition to any real property taxes and assessments, then Tenant shall reimburse
Landlord as additional rent the amount of any such tax, fee, or excise within ten (10) days after
receipt of a written statement of all amounts paid by Landlord on account thereof. Landlord and
Tenant intend this Section 24 to require Tenant to pay, and Tenant shall pay, all taxes,
assessments, levies, and other charges, regardless of how they are designated, arising out of
Tenant’s occupancy of the Leased Parcel or which are attributable to the Building and the Leased
Parcel, or for which Landlord is responsible as owner of the Leased Parcel by law. Taxes for any
partial tax fiscal year immediately following the Lease Term Commencement Date and/or prior
to the expiration (or sooner termination) of the Lease Term shall be prorated between Landlord
and Tenant based on a three-hundred-sixty-five- (365-) day tax fiscal year. Tenant shall have the
right to challenge the assessment of any real property tax and Landlord, at Tenant’s expense,
shall reasonably cooperate in such challenge. In the event such challenge results in an increase
in the real property taxes for the Leased Parcel, Tenant shall be solely responsible for the
payment of any and all such increases.
25.
Late Charge. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent and other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain.
Such costs include processing and accounting charges and late charges that may be imposed on
Landlord by the terms of any other agreements, which may involve the Leased Parcel.
Accordingly, if any installment of rent, additional rent or other sum due from Tenant are not
received by Landlord or Landlord’s designee within five (5) days after Tenant’s receipt of
written notice from Landlord of such delinquency, Tenant shall pay to Landlord a late charge
equal to five percent (5%) of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charge by Landlord shall in no event constitute a
waiver of Tenant’s default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies available to Landlord.
26.
Quiet Enjoyment. So long as Tenant is not in default hereunder, Tenant shall
have quiet and peaceful possession of the Leased Parcel.
27.
Right of Entry. Landlord and its authorized representatives shall have the right
to enter the Leased Parcel at reasonable intervals and at all reasonable times upon reasonable
notice for any of the following purposes:
27.1 To determine whether the Leased Parcel, Building, and Improvements are
in a state of good condition and repair and whether Tenant is complying with its obligations
under this Lease;
27.2 To serve, post, or keep posted any notices required or allowed under the
provisions of this Lease or by law;
27.3 To post “For Sale” signs at any time during the Lease Term, and to post
“For Rent” or “For Lease” signs during the last two (2) years of the Lease Term or during any
period while Tenant is in default; and
27.4 To show the Leased Parcel and the Improvements to prospective brokers,
agents, buyers, or persons interested in an exchange, at any time during the Lease Term, and to
prospective lessees or sublessees at any time during the last two (2) years of the Lease Term or
during any period while Tenant is in default.
28.
Waivers. No delay or omission in the exercise of any right or remedy of
Landlord with respect to any default by Tenant shall impair such right or remedy or be construed
as a waiver. The receipt and acceptance by Landlord of delinquent rent or other payments due
hereunder shall not constitute a waiver of any other default; it shall constitute only a waiver of
timely payment for the particular rent or other payment involved. No act or conduct of Landlord,
including the acceptance of the keys to the Building, shall constitute an acceptance of the
surrender of the Leased Parcel, the Building, or the Improvements by Tenant before the
expiration of the Lease Term; only a notice of termination from Landlord to Tenant shall
constitute acceptance of the surrender and accomplish a termination of this Lease prior to the
expiration of the Lease Term. Landlord’s consent to or approval of any act by Tenant requiring
Landlord’s consent or approval shall not be deemed to waive or render unnecessary Landlord’s
consent to or approval of any subsequent act by Tenant. Any waiver by Landlord of any default
must be in writing and shall not be a waiver of any other default concerning the same or any
other provision of this Lease.
29.
Transfer of Landlord’s Interest. If Landlord conveys in a sale, exchange, or
otherwise, all its interest in this Lease or in the property interests which are the subjects of this
Lease, then Landlord, on consummation of the conveyance, shall thereupon automatically be
released from any obligation or liability thereafter accruing under this Lease if Landlord’s
successor assumes in writing Landlord’s obligations under this Lease accruing from and after the
date of such assignment or transfer. If any security deposit or prepaid rent has been paid by
Tenant, Landlord may transfer such security deposit or prepaid rent to Landlord’s successor, and
on such transfer, Landlord shall be discharged from any further liability in connection with the
security deposit or prepaid rent.
30.
Time of Essence. Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is specified.
31.
Right to Estoppel Certificates. Tenant and Landlord shall, within twenty (20)
days after notice from the other party, execute and deliver in recordable form, a statement in
writing certifying: (i) that this Lease is unmodified and in full force and effect (or, if modified,
identifying each such modification and certifying that this Lease, as so modified, is in full force
and effect); (ii) the date to which the monthly Minimum Rent and any additional rent have been
paid in advance, if at all, and the amount of any security deposit; (iii) the commencement and
expiration dates of the Lease Term; (iv) that there are no options to extend or renew the Lease
Term or to purchase the Leased Parcel which such party claims (except as may be identified by
such party); and (v) that there are not, to the knowledge of the party providing such certificate,
any uncured defaults on the part of the other party hereunder (or specifying such defaults, if any,
as are claimed).
32.
Attorney Fees. If either party hereto brings an action at law or in equity to
enforce, interpret, or seek redress for the breach of this Lease, then the prevailing party in such
action shall be entitled to recover all court costs, witness fees, and reasonable attorney fees, in
addition to all other appropriate relief.
33.
Joint and Several Obligations. The term “party” shall mean Landlord or
Tenant; and if more than one person or entity is Landlord or Tenant, the obligations imposed on
that party shall be joint and several.
34.
Severability. The unenforceability, invalidity, or illegality of any provision of
this Lease shall not render the other provisions unenforceable, invalid, or illegal.
35.
Governing Law. This Lease shall be construed and interpreted in accordance
with the laws of the State of Idaho.
36.
Successors and Assigns. Subject to the provisions of Section 19 regarding
assignment and subletting, all the provisions, terms, covenants, and conditions of this Lease shall
be binding upon and inure to the benefit of the parties and their respective heirs, executors,
administrators, successors, and assigns.
37.
Construction and Interpretation. The use words “including,” “such as,” or
words of similar import, when following any general statement shall not be construed to limit
such statement to the specific items mentioned, whether or not language of non-limitation such
as “without limitation” or “but not limited to” is used with reference thereto, but rather shall be
deemed to refer to all other items that could reasonably fall within the broadest possible scope of
such statement. All provisions of this Lease have been negotiated by Landlord and Tenant at
arm’s length and neither party shall be deemed the scrivener of this Lease. This Lease shall not
be construed for or against either party by reason of the authorship or alleged authorship of any
provision hereof or by reason of the status of the respective parties as Landlord or Tenant.
38.
Integrated Agreement; Modification. This Lease contains all of the
representations, understandings and agreements of the parties with respect to the demise of the
Leased Parcel and may not be amended or modified except by a written agreement signed by
both parties.
39.
Document Execution and Change. It is understood and agreed that until this
Lease is fully executed and delivered by both Tenant and Landlord, there is not and shall not be
an agreement of any kind between the parties hereto upon which any commitment, undertaking
or obligation can be founded.
40.
Section Headings; References. Except in Section 1 (“Definitions”), the section
headings of this Lease are inserted only for convenience of reference and in no way define, limit,
or describe the scope or intent of this Lease or affect its terms or provisions. Unless the context
requires otherwise, references to “sections” and “exhibits” are references to the sections and
exhibits of this Lease.
41.
Survival of Defaults and Obligations. The expiration or sooner termination of
this Lease shall not impair or otherwise affect any right or remedy available to either Landlord or
Tenant hereunder with respect to any default by the other party which remains uncured as of the
date of expiration or termination of the Lease. All liabilities, indemnities, and unperformed
obligations and covenants existing prior to the expiration or sooner termination of this Lease
shall survive the expiration or termination of the Lease and shall be enforceable by Landlord.
42.
Default by Landlord. Landlord shall not be deemed to be in default in the
performance of any obligation required to be performed by it hereunder unless and until it has
failed to perform such obligation within thirty (30) days after written notice by Tenant to
Landlord specifying the nature of Landlord’s alleged default; provided, however, that if the
nature of Landlord’s alleged default is such that more than thirty (30) days are required for its
cure, then Landlord shall not be deemed to be in default if it shall commence such performance
within such 30-day period and thereafter diligently prosecute the same to completion. If the
Leased Parcel, or any portion thereof, is at any time subject to any mortgage or a deed of trust,
Tenant shall serve on the Mortgagee or beneficiary thereunder concurrent copies of any notice of
default served on Landlord hereunder. If Landlord fails to cure any noticed breach hereunder
within the time period provided in this Section 42, then any such Mortgagee or beneficiary shall
have an additional thirty (30) days within which to cure Landlord’s breach, plus such additional
time as may be necessary to perfect such Mortgagee’s or beneficiary’s rights and remedies under
its mortgage or deed of trust (including foreclosure proceedings or the appointment of a receiver)
and complete cure in fact. If and when such Mortgagee or beneficiary has rendered performance
on behalf of Landlord, Landlord’s breach shall be deemed cured, and if for any reason
Landlord’s breach is not susceptible of cure, it shall nevertheless be deemed cured upon such
Mortgagee’s or beneficiary’s taking of possession of Landlord’s interest in the Leased Parcel.
Notwithstanding anything to the contrary under applicable law, Tenant shall have no right to
terminate this Lease during the notice and cure periods hereunder, but in the event of a final
judicial determination (including all appeals therefrom) of breach of this Lease by Landlord
resulting in a monetary award of damages against Landlord and in favor of Tenant, then, and
only in that event, Tenant may offset the amount of such damages awarded against Minimum
Rent as the same comes due. If Landlord fails to cure its breach hereunder (or such breach is not
cured by a Mortgagee or beneficiary as herein specified), then Landlord shall be liable to Tenant
only for Tenant’s direct damages caused thereby and Tenant waives any rights to recover
consequential damages on account thereof.
43.
Force Majeure. The occurrence of any of the following events shall excuse the
performance of such obligations of Landlord or Tenant as are thereby rendered impossible or not
reasonably practicable for so long as such event continues: strikes; lockouts; labor disputes; acts
of God; inability to obtain labor, materials, or reasonable substitutes therefor; governmental
restrictions, regulations, or controls; judicial orders; enemy, or hostile government action; civil
commotion; fire or other casualty; and other causes beyond the reasonable control of the party
obligated to perform; provided, however, that in no event will the occurrence of any of said
events or causes excuse the failure to pay rent or any other payment to be made by Tenant
hereunder strictly as and when required under this Lease.
44.
Authority. Each party hereby warrants to the other that the execution of this
Lease by such party and the performance of all of the obligations to be performed by such party
hereunder have been duly authorized by all necessary governmental, organizational and
partnership action. Each party further warrants to the other that each individual signing this
Lease on behalf of such party has been fully authorized and empowered to do so by such party.
45.
Interest. Any sum due and payable to Landlord under the terms of this Lease
which is not paid when due shall bear interest from the date when the same becomes due and
payable by the provisions hereof until paid at a per-annum interest rate equal to the greater of
(i) ____________ percent (___%); or (ii) the reference rate, or succeeding similar index, of the
Bank of America, N.T. & S.A., in effect from time to time, plus two percent (2%); or (iii) the
maximum rate allowed by applicable usury law.
46.
No Accord and Satisfaction. No payment by Tenant or receipt by Landlord of a
lesser amount than the rent or other payment herein provided shall be deemed to be other than on
account of the earliest rent or other payment due and payable hereunder, nor shall any
endorsement or statement on any check or letter accompanying any check or payment as rent or
other payment be deemed an accord and satisfaction. Landlord may accept any such check or
payment without prejudice to Landlord’s right to recover the balance of such rent or other
payment or pursue any other right or remedy provided in this Lease.
47.
Waiver of Right of Redemption. Tenant hereby expressly waives any and all
rights of redemption granted by or under any present or future law in the event Tenant is evicted
or dispossessed from the Leased Parcel for any cause, or in the event Landlord obtains
possession of the Leased Parcel by reason of the commission by Tenant of an Event of Default or
otherwise.
48.
Subordination and Attornment.
48.1 Subordination. Landlord represents that there is currently no mortgage
or deed of trust that encumbers the Leased Parcel. If any future Mortgagee or beneficiary so
elects in writing, then, so long as such Mortgagee or beneficiary executes a non-disturbance
agreement in form and content reasonably satisfactory to Tenant, this Lease shall be subject and
subordinate to the lien of the mortgage or deed of trust held by such Mortgagee or beneficiary,
whether this Lease is dated or recorded before or after such mortgage or trust deed. Upon
request, Tenant shall promptly execute and deliver to Landlord, or any such Mortgagee or
beneficiary, any documents or instruments required by any of them to evidence subordination of
this Lease hereunder or to make this Lease prior to the lien of any mortgage or deed of trust as
herein specified. If Tenant fails or refuses to do so within ten (10) days after written request
therefor by Landlord or such Mortgagee or beneficiary, such failure or refusal shall constitute an
Event of Default hereunder by Tenant, but shall in no way affect the validity or enforceability of
the subordination to or by the mortgage or deed of trust held by such Mortgagee or beneficiary.
As used herein, the terms “mortgage” and “deed of trust” include any sale and leaseback
transaction in which Landlord sells and simultaneously leases back all or any portion of its
interest in the Leased Parcel.
48.2 Attornment by Tenant. Upon enforcement of any rights or remedies
under any mortgage or deed of trust to which this Lease is subordinated (including proceedings
for judicial foreclosure or a trustee’s sale pursuant to a power of sale, or deed in lieu of
foreclosure delivered by Landlord to the Mortgagee or beneficiary thereunder), Tenant shall, at
the election of the purchaser or transferee under such right or remedy, attorn to, and recognize
such purchaser or transferee as Tenant’s landlord under this Lease. Tenant shall execute and
deliver any document or instrument required by such purchaser or transferee confirming the
attornment hereunder.
49.
Relationship. Nothing contained in this Lease shall be deemed or construed by
the parties or by any third person to create the relationship of principal and agent, or of
partnership, joint venture, or any association between Landlord and Tenant, and neither the
method of computation of percentage rent, nor any other provision contained in this Lease, nor
any acts of the parties shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
50.
No Recourse. Notwithstanding anything to the contrary in this Lease, Tenant
shall look solely to Landlord’s interest in the Leased Parcel for satisfaction of any liability of
Landlord in respect hereof, and will not seek recourse against any other asset of Landlord or its
elected officials, appointed officials, managers, officers, employees, agents, or any of them or
their personal assets, for such satisfaction.
51.
Memorandum of Lease. This Lease shall not be recorded. However, a
Memorandum of Lease shall be executed, in recordable form, by both parties concurrently
herewith and maybe recorded by Tenant, at Tenant’s expense, in the deed records of Jackson
County, Idaho. Prior to recording such Memorandum of Lease, Tenant shall execute and deliver
a memorandum evidencing the termination of the Lease for the purpose of clearing title upon
termination or expiration of the Lease which Landlord shall hold in trust until such expiration or
termination, at which time Landlord may record said instrument.
LANDLORD
TENANT
City of Pocatello, a political subdivision of
the State of Idaho
[PARTY NAME], an [State of Registry]
[Type of Entity]
By:
Name:
Its:
By:
Name:
Its:
EXHIBIT A
Legal Description of the Business Center
Page 1 - EXHIBIT A
EXHIBIT B
Site Plan of the Business Center
Page 1 - EXHIBIT B
EXHIBIT C
Parcel Site Plan
Page 1 - EXHIBIT C
EXHIBIT D
Sublease Form
Page 1 - EXHIBIT D
EXHIBIT E
Legal Description of the Leased Parcel
Page 1 - EXHIBIT E
EXHIBIT F
Tenant’s Work
Page 1 - EXHIBIT F
EXHIBIT G
Tenant’s Off-Parcel Work
Page 1 - EXHIBIT G

GROUND LEASE AGREEMENT

Transcription

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