<PAGE>
EX-10.12
Lease between
Spokane Industrial Park, A Division
Of PENTZER DEVELOPMENT CORPORATION,
A Washington corporation
Landlord
And
CXT, INCORPORATED
A Delaware corporation,
Tenant
Dated as of April 1, 1993
(Tract A BSP 88-21)
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
1
Definitions
ARTICLE 2
2
Premises Leased
ARTICLE 3
2
Term
ARTICLE 4
2
Base Rent
ARTICLE 5
3
Security Deposit
ARTICLE 6
3
Use of Premises
ARTICLE 7
4
Repairs and Maintenance of Premises
ARTICLE 8
5
Hazardous Materials
ARTICLE 9
6
Taxes and Assessments
ARTICLE 10
7
Utilities
ARTICLE 11
8
Common Area Expenses
ARTICLE 12
9
All Expenses Other Than Specifically Dealt
With, Audit Rights
ARTICLE 13
9
Indemnification of Landlord
ARTICLE 14
11
Insurance
ARTICLE 15
13
Limit on Landlord's Liability
ARTICLE 16
13
Defaults and Remedies
ARTICLE 17
15
Landlord's Right to Perform Tenant's
Covenants
ARTICLE 18
15
Costs and Attorneys' Fees
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ARTICLE 19
16
Interest on Overdue Payments
ARTICLE 20
16
No Total Payments Abatement
ARTICLE 21
16
Damage to Premises
ARTICLE 22
17
Condemnation
ARTICLE 23
17
Transfer of Tenant's Interest
ARTICLE 24
19
Subordination
ARTICLE 25
19
Surrender
ARTICLE 26
20
Holding Over
ARTICLE 27
20
Quiet Enjoyment
ARTICLE 28
21
Right of Inspection
ARTICLE 29
21
Recording
ARTICLE 30
21
Estoppel Certificates
ARTICLE 31
22
Non-waiver
ARTICLE 32
22
Authority
ARTICLE 33
23
Brokers
ARTICLE 34
23
Notices
ARTICLE 35
23
Construction
ARTICLE 36
23
Covenants to Bind and Benefit Respective
Parties
ARTICLE 37
24
Sole Understanding of Parties
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ARTICLE 38
24
Further Documents
ARTICLE 39
24
Venue
ARTICLE 40
24
Consultation
</TABLE>
LEASE
This LEASE
(hereinafter referred to as "the lease" or "this lease") is
made
and entered into as of the 1st day of
April, 1993, by and between SPOKANE
INDUSTRIAL PARK, a division of PENTZER
DEVELOPMENT CORPORATION, a Washington
corporation ("Landlord"), and CXT,
INCORPORATED, a Delaware corporation
("Tenant").
ARTICLE 1.
Definitions
As used in this lease, the following terms
are defined as follows:
1.1
"Improvements" shall mean all buildings, structures and
improvements
now or hereafter situated, erected or
constructed on the Property and all
personal property, equipment and trade
fixtures not capable of being removed
without permanent damage to real property.
Damage shall not be considered
permanent if it can be, and is, repaired by
Tenant as required by ARTICLE 25.
"Existing Improvements" shall mean all
Improvements situated, erected or
constructed on the Property or any part
thereof as of the date hereof. "New
Improvements" shall mean all Improvements
situated, erected or constructed on
the Property after the date hereof.
1.2 "Premises"
shall mean the Property and the Improvements.
1.3 "Project "
shall mean the following-described real property, consisting
of approximately 8,619,217 gross square
feet, of which the Property is a part:
All property located within
a) Spokane County Altered Binding Site Plan
No. 87-17, recorded in Volume 1 of
Plats, page 22A, records of Spokane County,
Washington;
b) Spokane County Binding Site Plan No.
88-21, recorded in Volume 1 of Plats,
page 23, records of Spokane County,
Washington; and
C) Spokane County Binding Site Plan No.
88-22, recorded in Volume ___of Plats,
page ___, records of Spokane County,
Washington.
Landlord and
Tenant acknowledge that a portion of the Project will not have
final binding site plan approval by Spokane
County until completion of certain
<PAGE>
Infrastructure Improvements. Pending
completion of the Infrastructure
Improvements, the portion of the Project
described in Section 1.3(c) of the
Lease shall be that real property described
on Exhibit A attached to and made a
part of this lease.
1.4 *Property"
shall mean the following-described real property, consisting
of approximately 529,254 gross square feet,
and all easements, licenses,
privileges, rights and appurtenances
related thereto, subject to all easements,
rights-of-way, restrictions and
reservations of record:
Tract A, Spokane
County Binding Site Plan No. 88-21, recorded in Volume 1
of Plats, page 23, records of Spokane
County, Washington.
1.5 "Total
Payment shall mean all monetary sums due from Tenant to or for
the account of Landlord during the term of
this lease, including, without
limitation, all Base Rent and Additional
Rent. "Base Rent" shall mean all sums
payable by Tenant under ARTICLE 4.
"Additional Rent" shall mean and include
every other cost and expense which Tenant
shall be obligated to pay under any
provision of this lease as well as all sums
of money paid or advanced by
Landlord upon Tenant's behalf.
ARTICLE 2.
Premises Leased
2.1 Landlord
hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises, subject to all
terms and conditions of this lease.
ARTICLE 3.
Term
3.1 The term of
this lease shall commence April 1, 1993 and shall end on
March 31, 2003.
ARTICLE 4.
Base Rent
4.1 Tenant shall
pay to Landlord Base Rent of Seventeen Thousand Five
Hundred Ten Dollars ($17,51O.OO) for each
calendar month during the first year
of the lease term. On April 1, 1994 and on
the first day of each April
thereafter, the monthly Base Rent payable
for the succeeding year shall be
increased to equal one hundred three
percent (103%) of the monthly Base Rent
payable in the immediately preceding
year.
4.2 Base Rent
for each calendar month shall be paid in lawful U.S. money,
at the address specified in ARTICLE 34 or
such other place as Landlord may from
time to time designate in writing. Base
Rent for each calendar month shall be
paid in advance on the first day of each
month and without demand, offset or
deduction, except as expressly provided in
this lease. Base Rent for any portion
of a calendar month at the beginning of the
lease term or at the end of the
lease term shall be prorated.
<PAGE>
ARTICLE 5.
Security Deposit
5.1 Upon
execution of this lease Tenant shall give to Landlord, and
thereafter within five (5) days after
request shall deposit additional funds as
necessary to maintain with Landlord,
a security deposit of waived Dollars ($
waived). The security deposit shall be
held by Landlord and any interest thereon
shall belong to Landlord. If Tenant
fails to make the "Total Payments" required
under this Lease or defaults in
performance of its other obligations under
this Lease, Landlord may use all or
pan of the security deposit to pay any such
amounts in default or for payment of
any other amount which Landlord spends or
becomes obligated to spend by reason
of Tenant's default, or for the payment to
Landlord of any other loss or damage
which Landlord may suffer by reason of
Tenant's default. Landlord shall not be
required to utilize the security deposit
prior to declaring a default under the
Lease, nor shall the security deposit be a
limitation on Landlord's damages or
other rights under this Lease for a payment
of liquidated damages or an advance
payment of Total Payments. If Tenant shall
have fully performed all of the
promises, covenants, terms and conditions
of this lease and surrendered the
Premises in accordance with ARTICLE 25, the
security deposit shall be returned
to Tenant within thirty (30) days after the
expiration of this lease.
ARTICLE 6.
Use of Premises
6.1 The Premises
shall be used for office purposes, the manufacture,
storage and distribution of pavers,
concrete railroad ties, other concrete
products, and associated products, and for
no other purpose without the prior
written consent of Landlord, which consent
shall not be unreasonably withheld.
Landlord's withholding of consent shall not
be unreasonable if based upon
increased risks posed by Tenant's use of
hazardous substances.
6.2 Tenant shall
not use or permit the Premises to be used for any unlawful
purpose and shall use the Premises and
Improvements in accordance with all laws,
rules, regulations, ordinances and
requirements now or hereafter in effect,
including, without limitation, any
applicable to the generation, use,
manufacture, treatment, transportation,
storage or disposal of hazardous
substances.
6.3 No change,
alteration or improvement to the Improvements shall be
undertaken nor shall New Improvements be
constructed without Landlord's prior
consent, which consent shall not be
unreasonably withheld; provided, however,
Tenant shall not be required to obtain such
consent for (i) changes,
alterations, improvements, or construction
costing less than Ten Thousand
Dollars ($10,000.00) which do not affect
the roof, exterior building materials,
any structural component or the primary
electrical, plumbing, HVAC or other
major system of the Improvements. Tenant
shall give written notice to Landlord
of any proposed change, alteration,
improvement or construction requiring
consent prior to making such change,
alteration, improvement or construction. If
a change, alteration, improvement or
construction would involve a cost of more
than Ten Thousand Dollars ($10,000.00) or
would affect the roof, exterior
building materials, any structural
component or the primary electrical,
plumbing, HVAC or other major system of the
Improvements, Tenant (a) shall
provide Landlord with complete plans and
specifications therefor along with
Tenant's notice, and (b) shall not proceed
without Landlord's prior written
<PAGE>
consent, which shall be given or denied
within fifteen (15) days after receipt
of Tenant's notice and complete plans and
specifications. Landlord shall be
deemed to have consented to, and Tenant may
proceed with any change, alteration,
improvement or construction for which
Landlord's consent is required, in the
absence of any objection from Landlord
within such fifteen (15) day period. By
written notice to Tenant, Landlord may
extend the time for granting or
withholding consent to any proposed change,
alteration, improvement or
construction for up to a maximum of thirty
(30) additional days if necessary due
to the scope of Tenant's plans. All
changes, alterations, improvements and
construction shall be at Tenant's sole
cost, free of claims of lien, and shall
be performed in a good and workmanlike
manner and in conformance with applicable
building codes and other laws, ordinances,
rules and regulations.
6.4 Tenant shall
conduct its business and control its employees, agents,
invitees and visitors in such manner as not
to create any unlawful nuisance, or
unreasonably interfere with, annoy or
disturb any other tenant of the Project.
Tenant shall not do anything which would
cause Landlord's insurance rates to
increase unless Tenant pays the amount of
such increase. Tenant shall not do
anything which is prohibited by insurance
policies maintained by Landlord or
Tenant under this lease or which would
cause a cancellation of any such
policies, unless substitute policies are
procured, which would permit such
activities. Tenant shall pay all excess
costs of such substitute policies.
Landlord shall reasonably cooperate with
Tenant and insurers in attempting to
accommodate Tenant's activities, provided
such accommodation does not adversely
affect Landlord or other tenants of
premises covered by Landlord's insurance
policies.
6.5 Tenant shall
comply with reasonable rules and regulations promulgated
from time to time by Landlord with respect
to the use of common access roads
within and otherwise serving the Project,
the private water and sewer
facilities, the appearance and location of
signage within the Project, and the
appearance and regular maintenance of
building exteriors and landscaping within
the Project. Landlord shall use good faith
efforts to uniformly enforce such
rules and regulations; however, Landlord
shall have no liability for the failure
of any other tenant to comply with such
rules and regulations, or for the
conduct of tenants under leases predating
the promulgation of such rules and
regulations.
ARTICLE 7.
Repairs and Maintenance of the Premises
7.1 Throughout
the term of this lease, Tenant, at its sole cost, shall
keep the Premises in a habitable, safe,
neat, clean and sanitary condition, and
in first class working order and repair,
except as expressly set forth otherwise
in this lease. Tenant shall not cause or
permit waste, damage or injury to the
Premises.
7.2 Landlord
shall, within a reasonable time after written notice from
Tenant, perform all repairs to the Premises
made necessary by casualty or other
loss insured against by Landlord's
insurance policies described in Section 14.
1; provided, however, Tenant shall be
liable for the lesser of (a) the cost of
such repairs or (b) the deductible under
Landlord's insurance policy, up to a
maximum of One Thousand Dollars
($1,000.00).
<PAGE>
7.3 Tenant shall
make any and all repairs to the Premises, of any kind or
description whatsoever, made necessary by
or arising out of Tenant's use and
occupancy of the Premises (excepting only
(i) repairs to be performed by
Landlord pursuant to Section 7.2, and (ii)
repairs made necessary by uninsured
catastrophic loss not attributable to
Tenant's negligence or other fault,
including, without limitation, earthquake,
flood, war and nuclear reaction),
structural or nonstructural, interior or
exterior, including, without
limitation, repair or replacement of any
glass as may become cracked or broken,
repair to the roof, floors, walls, sash,
pipes, interior partitions and doors,
ceilings and to the heating, air
conditioning and refrigeration plants,
electrical lighting, fire safety, fire
sprinkler and plumbing fixtures, and to
all other fixtures, equipment and
appurtenances thereto, and to the irrigation
system, parking lots, driveways and other
exterior Improvements. Any such
repairs shall be performed in a good and
workmanlike manner, and all items shall
be replaced with items of similar quality
and first class condition. Tenant
shall make all repairs to the Premises
required by federal, state, county and
city statutes, codes, ordinances and
regulations. All repairs, other than those
covered by Landlord's insurance policy
described in Section 14. 1, shall be at
Tenant's sole cost. Work on all repairs
which Tenant is obligated to make under
this lease shall commence promptly after
the need therefor becomes known to
Tenant, and Tenant shall pursue the repair
work, to completion with due
diligence. Except in the case of emergency
(when notice shall be given as soon
as practical), Tenant shall notify Landlord
in advance of any planned or
necessary repairs to the roof, exterior
building materials or structural
components or to the primary electrical,
plumbing, HVAC or other major system of
the Improvements, and Landlord shall have
the option of performing such repairs
at Tenant's cost; provided, however, in no
event shall Tenant be obligated to
pay any costs in excess of the lowest fixed
price bid received by Tenant from a
responsible licensed contractor reasonably
acceptable to Landlord to perform
such repairs.
7.4 Tenant's
obligations arising during the term of this lease under this
ARTICLE shall survive any termination or
expiration of this lease.
ARTICLE 8.
Hazardous Materials
8.1 Tenant shall
not, without prior written notice to Landlord, engage in
or allow the generation, use, manufacture,
treatment, transportation, storage or
disposal of any hazardous substance in, on,
under or adjacent to the Premises.
Prior to taking occupancy of the Premises,
Tenant shall provide Landlord with a
description of any processes or activities
involving the use of hazardous
substances to be conducted by Tenant as
well as a description (by type and
amount) of any hazardous substances Tenant
plans to generate, use, manufacture,
transport, store or dispose of in
connection with its use of the Premises.
Tenant warrants that such description is
and will be true, accurate and
complete. Tenant shall notify Landlord
prior to any material changes in such
processes, activities or type and amount of
hazardous substances utilized by
Tenant and in any event, Tenant shall
report to Landlord at least once yearly
regarding any such processes, activities
and hazardous substances. Tenant shall
contemporaneously provide Landlord with
copies of all reports, listings or other
information required by any governmental
entity relating to any hazardous
substances utilized by Tenant, and shall
promptly provide any other information
related to Tenant's utilization of
hazardous substances as Landlord may
reasonably request.
<PAGE>
8.2 Tenant shall
not engage in or allow the unlawful release (from
underground tanks or otherwise) of any
hazardous substance in, on, under or
adjacent to the Property (including air,
surface water and groundwater on, in,
under or adjacent to the Property). Tenant
shall at all times be in compliance
with all applicable law (and shall cause
its employees, agents and contractors
to be) with respect to the Premises or any
hazardous substance and shall handle
all hazardous substances in compliance with
good industry standards and
practices. As used in this Lease, the term
"hazardous substance" shall mean any
substance, chemical or waste, including any
petroleum products or radioactive
substances, that is now or shall hereafter
be listed, defined or regulated as
hazardous, toxic or dangerous under any
applicable laws. As used in this
ARTICLE, "applicable law" shall mean any
federal, state, or local laws,
ordinances, rules, regulations and
requirements (including consent decrees and
administrative orders) relating to the
generation, use, manufacture, treatment,
transportation, storage or disposal of any
hazardous substance now or hereafter
enacted.
8.3 Tenant shall
promptly notify Landlord, in writing, if Tenant has or
acquires notice or knowledge that any
hazardous substance has been or is
threatened to be unlawfully released,
discharged or disposed of, on, in, under
or from the Premises. Tenant shall
immediately take such action as is necessary
to detain the spread of and remove, to the
satisfaction of Landlord and any
governmental agency having jurisdiction,
any hazardous substances released,
discharged or disposed of as the result of
or in any way connected with the
conduct of Tenant's business, and which is
now or is hereafter determined to be
unlawful or subject to governmentally
imposed remedial requirements. Tenant
shall immediately notify Landlord and
provide copies upon receipt of all written
complaints, claims, citations, demands,
inquiries, reports or notices relating
to the condition of the Premises or
compliance with environmental laws. Tenant
shall promptly cure and have dismissed with
prejudice any such actions or
proceedings in any way connected to the
conduct of Tenant's business, to the
satisfaction of Landlord, and Tenant shall
keep the Premises free of any lien
imposed pursuant to any environmental law.
Landlord shall have the right at all
reasonable times and from time to time to
conduct environmental audits of the
Premises (including sampling, testing,
monitoring and accessing environmental
records required by applicable law) by a
consultant of Landlord's choosing, and
Tenant shall cooperate with the conduct of
these audits. If any violation of any
applicable law by Tenant or any violation
of Tenant's obligations under this
ARTICLE are discovered, in addition to any
other right Landlord may have against
Tenant, the fees and expenses of such
consultant shall be borne by the Tenant
and shall be paid by Tenant to Landlord on
demand.
8.4 Tenant's
obligations under this ARTICLE with respect to any occurrence
during the term of this lease shall survive
any termination or expiration of
this lease.
ARTICLE 9.
Taxes and Assessments
9.1 Tenant shall
pay when due any and all taxes, installments of general or
special assessments (amortized over the
longest permissible time), levies,
license and permit fees and other
governmental charges and impositions of any
<PAGE>
kind and nature whatsoever, together with
any interest or penalties attributable
to Tenant's failure to pay the same when
due, which at any time during the term
of this lease may be assessed, levied or
become due and payable out of or in
respect of, or become a lien on the
Premises, including, without limitation, any
sales tax, business and operation tax,
excise tax or similar tax or imposition
imposed upon rent or Landlord's business of
leasing property within the Project
(collectively the "Impositions"); provided,
however, Tenant shall not be
obligated to pay Landlord's net income
taxes or any transfer or excise tax.
imposed upon the conveyance of the
Premises, or business and occupation taxes
imposed upon Landlord's business activities
other than leasing property within
the Project.
9.2 Impositions
shall be paid by Tenant to Landlord in one or more
installments each year during the lease
term, in an amount estimated by
Landlord. If Impositions are billed to
Tenant based upon estimates, on or before
April 1st of each year, Landlord shall, but
not less than once annually, furnish
to Tenant a statement of the actual amount
of Impositions incurred. Within
thirty (30) days after receipt of such
statement, Tenant shall pay Landlord the
amount by which the actual Impositions
exceed estimated Impositions paid by
Tenant. If the estimated amount of
Impositions paid by Tenant exceeds the actual
Impositions, such excess shall be credited
against the next Imposition payment
due from Tenant. Notwithstanding the
foregoing Landlord may elect to require
Tenant to pay all or some Impositions
directly to the governmental authority
levying the same.
9.3 Tenant may
seek a reduction in the assessed valuation of the Premises
for tax purposes and to contest in good
faith by appropriate proceedings, at
Tenant's expense, the amount or validity of
any tax or assessment, provided that
prior to the date when any penalties or
interest may be incurred, Tenant shall
deposit with the appropriate entity making
the tax or assessment the sum
contested or secure a bond in an amount
sufficient to fully satisfy the amount
of any lien upon the Premises. Any bond
posted shall name Landlord as a
co-obligee and shall be reasonably
satisfactory, as to issuer and form, to
Landlord. Any refund allocable to the term
of this lease shall belong, to
Tenant.
9.4 Tenant's
obligations under this ARTICLE with regard to Impositions
arising during the term of this lease shall
survive any termination or
expiration of this lease.
ARTICLE 10.
Utilities
10.1 Tenant
shall pay, when due, any and all charges and fees for gas,
heat, electricity, water, sewer, garbage
collection, telephone and all other
public or private utilities servicing the
Premises and shall, upon request,
provide evidence of such payment. Tenant
shall not be entitled to terminate this
lease or receive an abatement of rent as
the result of any failure, interruption
or discontinuance of any utility service
for any reason; provided however, if
such interruption or discontinuance which
materially affects Tenant's occupancy
of the Premises results from the negligence
of Landlord and continues, after
notice to Landlord, for a period in excess
of seven (7) business days, Total
Payments shall abate until service is
resumed.
<PAGE>
10.2 Rates
charged by Landlord to Tenant for utility services owned by
Landlord (upon execution of this lease,
sewer and water) shall be based upon
consumption and will be the same rates
charged to other tenants within the
Project.
10.3 Tenant's
obligations under this ARTICLE with regard to utilities
furnished to the Premises during the term
of this lease shall survive any
termination or expiration of this
lease.
ARTICLE 11.
Common Area Expenses
11.1 Tenant
shall pay Landlord its proportionate share of all reasonable
and customary costs (not including
depreciation or costs of repairs resulting
from Landlord's negligence), paid or
incurred by Landlord in operating and
maintaining the common access roadways,
sidewalks, pathways, landscaped areas
and other similar areas or improvements
which may be provided by Landlord for
the common use or benefit of tenants of the
Project, (but not including common
areas specific to a particular building
other than the Premises), including
without limitation, costs of personnel,
equipment and material for maintenance,
repair, replacement, snow removal,
striping, signage and other traffic control
measures, costs for lighting, insurance,
property taxes, licenses, permits and
fees. Tenant's proportionate share of such
expenses shall be a fraction, the
numerator of which is the area of the
Property and the denominator of which is
the area of the Project (or, if the expense
is incurred with respect to property
not co-extensive with the Project, such
other fraction as reasonably determined
by Landlord). Capital expenses shall be
amortized over their reasonably expected
useful life, as determined by Landlord.
Common area charges shall not include
expenses of initial installation of
roadways, initial landscaping management
fees or Landlord's general administrative
expenses for the Project.
11.2 Common area
charges shall be paid by Tenant in one or more
installments each year during the lease
term in an amount estimated by Landlord.
On or before April 1 of each year, Landlord
shall furnish to Tenant a statement
of the actual amount of Tenant's
proportionate share of common area expenses for
the preceding calendar year. Within thirty
(30) days after receipt of such
statement, Tenant shall pay Landlord the
amount by which such expenses exceed
Landlord's estimates. If Tenant has paid
more than the actual amount of such
expenses, such excess shall be credited
against expenses due for the ensuing
year.
11.3 The common
area shall consist of easements shown on the Binding Site
Plans of the Project, landscaping easements
twenty (20) feet in width adjacent
to all public and private roadways within
the Project, and other perimeter
easements and necessary rights-of-way for
utilities and private roadways
servicing the Project, for public streets,
pathways and "208" drainage areas,
all as reasonably designated by Landlord,
and the private sewer and water and
systems serving the Project. Landlord shall
provide and maintain landscaping
within the landscaping easement described
above. The common areas are for the
joint benefit of all tenants of the Project
and adjacent property owned by
Landlord, and Landlord reserves the
following rights with respect to the common
areas:
<PAGE>
(a) to establish
reasonable rules and regulations for the use of the common
areas;
(b) to close all
or any portion of the common areas for reasonable periods
to make repairs and changes, and to change
the location, layout or shape of the
common areas, provided Tenant's access to
the Premises is not unreasonably
impaired;
(c) to grant
access to the common areas to utility providers, governmental
entities and others to maintain and repair
the improvements serving the Project
and the public;
(d) to dedicate
the common areas to public use.
11.4 Tenant's
obligations under this ARTICLE with regard to common area
charges arising during the term of this
lease shall survive any termination or
expiration of this lease.
ARTICLE 12.
All Expenses Other Than Specifically Dealt With, Audit Rights
12.1 If, during
the term of this lease, expenses arise, become due, or are
incurred by Landlord, relating to or
resulting from the Project, the lease of
the Premises, use of the Improvements and
personal property subsequently placed
upon the Premises or the business conducted
by Tenant, which expenses are not
specifically dealt with in the lease, such
expenses shall be allocated between
Landlord and Tenant in a manner consistent
with the allocation of expenses
specifically dealt with in the lease so
that each party receives substantially
the benefit of the bargain reflected in the
lease.
12.2 Not more
than once each calendar year, Tenant shall have the right,
upon thirty (30) days' prior notice to
Landlord, to examine Landlord's records
for the prior year relating to Impositions
(ARTICLE 9), insurance (ARTICLE 14)
and common area expenses (ARTICLE 11), and
to challenge the amount of any such
charges. The amount of any charges found,
by agreement or otherwise, to be
improper or excessive shall be credited
against the next installment(s) of
Additional Rent due from Tenant.
ARTICLE 13.
Indemnification of Landlord
13.1 Tenant
releases and, subject to the provisions of Section 14.5, shall
defend, indemnify and hold harmless
Landlord, and each of its officers,
directors, shareholders, employees, agents
and representatives, against and from
all liabilities, obligations, damages,
penalties, judgments, claims, costs,
charges, fees and expenses, including, but
not limited to, costs of
investigation and correction, reasonable
architects, attorneys' and consultants'
fees and costs, which may be imposed upon,
incurred by or asserted against
Landlord or its officers, directors,
shareholders, employees, agents and
representatives by reason of any of the
following:
(a) any act or
omission during the term of this lease in, on, about or
arising out of or in connection with the
use, operation, maintenance and
occupancy of the Premises or any part
thereof, whether or not consented to by
Landlord; by Tenant, or
<PAGE>
Tenant's agents, contractors, servants or
employees (whether inside or outside
the scope of employment), licensees or
invitees, except to the extent caused by
the negligence or intentional misconduct of
Landlord or its agents, contractors,
subcontractors, servants or employees;
(b) any
accident, injury, casualty, loss, theft or damage whatsoever to
any
person or tangible property occurring in,
on, about or arising out of or in
connection with the use or occupancy by
Tenant of t
