Exhibit 10.1
1. BASIC LEASE TERMS
a. DATE OF LEASE: MARCH 17, 2000
b. TENANT: TYSA CORPORATION, A WASHINGTON CORPORATION
Trade Name: TYSA CORPORATION
Address (Leased Premises): 00000 00XX XXXXXX XX, XXXXXXX, XX 00000
Building/Unit: F/105
Address (For Notices): 00000 00XX XXXXXX XX, XXXXX 000, XXXXXXX, XX
00000
c. LANDLORD: TEACHERS INSURANCE & ANNUITY ASSOCIATION OF AMERICA, INC. A
NEW YORK CORPORATION
Address (For Notices): 00000 00XX XXXXXX XX, XXXXX 000, XXXXXXX, XX
00000 with a copy to such other place as Landlord may from time to
time designate by notice to Tenant.
d. TENANT'S USE OF PREMISES: GENERAL OFFICE FOR COMPANY SPECIALIZING IN
PLACING AUTOMOBILES ONTO THE INTERNET ON BEHALF OF NEW CAR
DEALERSHIPS.
e. PREMISES AREA: An agreed 5,446 Rentable Square Feet
f. PROJECT AREA: An agreed 444,999 Rentable Square Feet
g. TERM OF LEASE: This Lease shall commence on APRIL 6,2000 or such earlier
or later date as is provided in Section 3 (the "Commencement Date"), and
shall terminate on the last day of the SIXTIETH (60th) full calendar
month after the Commencement Date (the "Expiration Date").
h. BASE MONTHLY RENT (months refer to period through the applicable full
calendar month):
Commencement Date - Month 24 $6,508.00
Month 25 - Month 48 $7,094.00
Month 49 - Month 60 $7,732.00
i. PREPAID RENT (for months in addition to first month's rent) NA
j. SECURITY DEPOSIT: $7,732.00 NON-REFUNDABLE CLEANING FEE: $773.00
k. BROKER(S):Xxxxxx's Broker XXXXX XXXX, XXXXXXXX XXXX
Landlord's Broker XXXXX XXXXXXXX/XXXXXXX XXXX, CB XXXXXXX XXXXX
l. GUARANTOR(S): NA
m. EXHIBITS
Exhibit A - The Premises
Exhibit B - The Project
Exhibit C - Work Letter Agreement
Exhibit D - Rules and Regulations
Exhibit E - Tenant Sign Criteria
Exhibit F - Additional Utilities or Services [if applicable]
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2. PREMISES/COMMON AREAS/PROJECT.
A. PREMISES. Landlord leases to Tenant the premises described in Section
1 and in Exhibit A (the "Premises"), located in this project described
on Exhibit B (the "Project"). By entry on the Premises, Xxxxxx
acknowledges that it has examined the Premises and accepts the
Premises in their present condition, subject to any Landlord's Work
required under this Lease. Landlord's Work shall consist of such work,
if any, as is specifically identified as Landlord's responsibility
under Exhibit C. Unless otherwise identified in written notice from
Tenant to Landlord prior to the dates specified below, Landlord's Work
shall be deemed approved by Tenant in all respects on the earlier of
(a) the date Tenant commences construction or installation of any
Tenant's Work, or (b) the date Tenant begins to move its personal
property into the Premises. Tenant represents and warrants that it
agrees with the square footage specified for the Premises and the
Project in Section 1 and will not hereafter challenge such
determination and agreement.
B. COMMON AREAS. As used in this Lease, "Common Areas" shall mean all
portions of the Project not leased or demised for lease to specific
tenants. During the Lease Term, Tenant and its licensees, invitees,
customers and employees shall have the non-exclusive right to use the
public portions of the Common Areas, including all parking areas,
landscaped areas, entrances, lobbies, elevators, stairs, corridors,
and public restrooms in common with Landlord, other Project tenants
and their respective licensees, invitees, customers and employees.
Landlord shall at all times have exclusive control and management of
the Common Areas and no diminution thereof shall be deemed a
constructive or actual eviction or entitle Tenant to compensation or a
reduction or abatement of rent. Landlord in its discretion may
increase, decrease or change the number, locations and dimensions of
any Common Areas and other improvements shown on Exhibit A which are
not within the Premises.
C. PROJECT. Landlord reserves the right in its sole discretion to modify
or alter the configuration or number of buildings in the Project,
provided only that upon such modification or alteration, the Project
Area as set forth in Section 1(f) shall be adjusted to reflect such
modification or alteration.
3. TERM. The Commencement Date listed in Section l of this Lease represents an
estimate of the Commencement Date. This Lease shall commence on the
estimated Commencement Date if tenant improvement work required of Landlord
pursuant to this Lease ("Landlord's Work") is substantially completed (as
that term is used in the construction industry) by such date, but otherwise
the Commencement Date shall be first to occur of the following events (i)
the date on which Landlord notifies Tenant that Landlord's Work is
substantially complete, (ii) the date on which Tenant takes possession or
commences beneficial occupancy of the Premises, or (iii) if substantial
completion of Landlord's Work is delayed due to Tenant's failure to perform
its obligations under this Lease, then the date determined by Landlord as
the date upon which Xxxxxxxx's Work would have been substantially
completed, but for Xxxxxx's failure to perform. If this Commencement Date
is later than the Section 1 Commencement Date, this Lease shall not be void
or voidable, nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom. Landlord shall confirm the Commencement Date by
written notice to Tenant. This Lease shall be for a term ("Lease Term")
beginning on the Commencement Date and ending on the Expiration Date,
unless extended or sooner terminated in accordance with the terms of this
Lease. All provisions of this Lease, other than those relating to payment
of Base Monthly Rent and Additional Rent, shall become effective on the
date that Tenant or its officers, agents, employees or contractors is first
present on the Premises for inspection, constriction or move in purposes.
4. RENT
A. BASE MONTHLY RENT. Tenant shall pay Landlord monthly base rent in the
initial amount in Section 1 which shall be payable monthly in advance on
the first day of each and every calendar month ("Base Monthly Rent")
provided, however, the first month's Base Monthly Rent is due and payable
upon execution of this Lease. If the term of this Lease contains any rental
abatement period, Tenant hereby agrees that if Tenant breaches the Lease
and fails to cure such breach within the applicable cure period, if any,
and/or abandons the Premises before the end of the Lease term, or if
Tenant's right to possession is terminated by Landlord because of Tenant's
breach of the Lease, the rental abatement period shall be deemed
extinguished, and there shall be immediately due from Tenant to Landlord,
in addition to any damages otherwise due Landlord under the terms and
conditions of the lease, Base Monthly Rent prorated for the entirety of the
rental abatement period at the average Base Monthly Rent for the Lease,
plus any and all other charges (such as expenses) that were abated during
such rental abatement period.
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For purposes of Section 467 of the Internal Revenue Code, the parties
to this Lease hereby agree to allocate the stated Rents, provided herein,
to the periods which correspond to the actual Rent payments as provided
under the terms and conditions of this agreement.
B. EXPENSES. The purpose of this Section 4(b) is to ensure that Tenant
bears a share of all Expenses related to the use, maintenance, ownership,
repair or replacement, and insurance of the Project. Accordingly, beginning
on the date Tenant takes possession of the Premises, Tenant shall each
month pay to Landlord one-twelfth (1/12) of Tenant's Share of Expenses
related to the Project. As used in this Lease, "Tenant's Share" shall mean
the Premises Area, as defined in Section 1(e), divided by the Project Area,
as defined in Section 1(f), and "Tenant's Share of Expenses" shall mean the
total Expenses for the Project for the applicable calendar year multiplied
by Xxxxxx's Share. Landlord may specially allocate individual expenses
where and in the manner necessary, in Xxxxxxxx's discretion, to
appropriately reflect the consumption of the expense or service. For
example where some but not all premises in the Project have HVAC, Landlord
may reallocate Project Expenses for HVAC to all premises utilizing HVAC to
be apportioned on a per square foot basis, or could allocate to each
premises utilizing HVAC the cost of maintaining that space's individual
unit. In the event the average occupancy level of the Project for any year
is less than ninety five percent (95%), the actual Expenses for such year
shall be proportionately adjusted to reflect those costs which Landlord
estimates would have been incurred, had the Project been ninety five
percent (95%) occupied during such year.
1) EXPENSES DEFINED. The term "Expenses" shall mean all costs and
expenses of the ownership, operation, maintenance, repair or
replacement, and insurance of the Project, including without
limitation, the following costs:
(a) All supplies, materials, labor, equipment, and utilities
used in or related to the operation and maintenance of the
Project,
(b) All maintenance, janitorial, legal, accounting,
insurance, service agreement and management (including on-site
management office) costs related to the Project;
(c) All maintenance, replacement and repair costs relating
to the areas within or around the Project, including, without
limitation, air conditioning systems, sidewalks, landscaping,
service areas, driveways, parking Areas (including resurfacing
and restriping parking areas), walkways, building exteriors
(including painting), signs and directories, repairing and
replacing roofs, walls, etc, These costs may be included either
based on actual expenditures or the use of an accounting reserve
based on past cost experience for the Project.
(d) Amortization (along with reasonable financing charges)
of capital additions or improvements made to the Project which
may be required by any government authority or which will improve
the operating efficiency of the Project (provided, however, that
the amount of such amortization for improvements not mandated by
government authority shall not exceed in any year the amount of
costs reasonably determined by Landlord in its sole discretion to
have been saved by the expenditure either through the reduction
or minimization of increases which would have otherwise
occurred).
(e) Real Property Taxes including all taxes, assessments
(general and special) and other impositions or charges which may
be taxed, charged, levied, assessed or imposed upon all or any
portion of or in relation to the Project or any portion thereof,
any leasehold estate in the Premises or measured by Rent from the
Premises, including any increase caused by the transfer, sale or
encumbrance of the Project or any portion thereof. "Real Property
Taxes" shall also include any form of assessment, levy, penalty,
charge or tax (other than estate, inheritance, net income, or
franchise taxes) imposed by any authority having a direct or
indirect power to tax or charge, including, without limitation,
any city, county, state federal or any improvement or other
district, whether such tax is (1) determined by the value of the
Project or the Rent or other sums payable under this Lease; (2)
upon or with repect to any legal or equitable interest of
Landlord in the Project or any part thereof; (3) upon this
transaction or any document to which Tenant is a party creating a
transfer in any interest in the Project, (4) in lieu of or as a
direct substitute in whole or in part of or in addition to any
real property taxes on the Project, (5) based on any parking
spaces or parking facilities provided in the Project, (6) in
consideration for serives, such as police protection, fire
protection, street, sidewalk and
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roadway maintenance, refuse removal or other services that may be
provided by any governmental or quasi-governmental agency from
time to time which were formerly provided without charge or with
less charge to property owners or occupants, or (7) otherwise
based on the operation of the Project (such as transit,
carpooling or environmental facilities.
(f) Landlord agrees that Expenses as defined in Section 4(b)
shall not include leasing commissions; payments of principal and
interest on any mortgages, deeds of trust or other encumbrances
upon the Project; depreciation of the capital cost of capital
additions or improvements except as provided at 4(b)(1)(d);
Landlord's executive salaries, management fees in excess of
market rates; costs resulting from defective design or
construction of the Project; costs incurred in connection with
entering into new leases; or costs of disputes under existing
leases. In no event shall Expenses include any charge for which
Landlord receives reimbursement from insurance or from another
Tenant, nor shall any item of Expense be counted more than once,
nor shall Landlord collect more than one hundred percent (100%)
of Expenses.
2) ANNUAL ESTIMATE OF EXPENSES. When Xxxxxx takes possession of the
Premises, Landlord shall estimate Tenant's Share of Expenses for the
remainder of the calendar year, and at the commencement of each
calendar year thereafter, Landlord shall provide Tenant with an
estimate of Xxxxxx's Share of Expenses for the ensuing calendar year.
3) MONTHLY PAYMENT OF EXPENSES. Tenant shall pay to Landlord,
monthly in advance, as Additional Rent, one-twelfth (1/12) of the
Annual Estimate of Xxxxxx's Share of Expenses beginning on the date
Tenant takes possession of the Premises. As soon as practical
following each calendar year, Landlord shall prepare an accounting of
actual Expenses incurred during the prior calendar year and such
accounting shall reflect Tenant's Share of Expenses. If the Additional
Rent paid by Tenant under this Section 4(b)(3) during the preceding
calendar year was less than the actual amount of Tenant's Share of
Expenses, Landlord shall so notify Tenant and Tenant shall pay such
amount to Landlord within 30 days of receipt of such notice. Such
amount shall be deemed to have accrued during the prior calendar year
and shall be due and payable from Tenant even though the term of this
Lease has expired or this Lease has been terminated prior to Xxxxxx's
receipt of this notice. Tenant shall have thirty (30) days from
receipt of such notice to contest the amount due, failure to so notify
Landlord shall represent final determination of Tenant's Share of
Expenses. If Tenant's payments were greater than the actual amount,
then such overpayment shall be credited by Landlord to Tenant's Share
of Expenses due under this Section 4(b)(3).
4) RENT WITHOUT OFFSET AND LATE CHARGE. As used herein, "Rent" shall
mean all monetary sums due from Tenant to Landlord. All Base Monthly
Rent shall be paid by Tenant to Landlord without prior notice or
demand in advance on the first day of every calendar month, at the
address shown in Section 1, or such other place as landlord may
designate in writing from time to time. Whether or not so designated,
all other sums due from Tenant under this Lease shall constitute
Additional Rent, payable without prior notice or demand when specified
in this Lease, but if not specified, then within ten (10) days of
demand. All Rent shall be paid without any deduction or offset
whatsoever. All Rent shall be paid in lawful currency of the United
States of America. Proration of Rent due for any partial month shall
be calculated by dividing the number of days in the month for which
Rent is due by the actual number of days in that month and multiplying
by the applicable monthly rate. Tenant acknowledges that late payment
by Tenant to Landlord of any Rent or other sums due under this Lease
will cause Landlord to incur costs not contemplated by this Lease, the
exact amount of such cost being extremely difficult and impracticable
to ascertain. Such costs include, without limitation, processing and
accounting charges and late charges that may be imposed on Landlord by
the terms of any encumbrance or note secured by the Premises.
Therefore, if any Rent or other sum due from Tenant is not received
within ten (10) days of due date, Tenant shall pay to Landlord an
additional sum equal to 10% of such overdue payment. Landlord and
Tenant hereby agree that such late charge represents a fair and
reasonable estimate of the costs that Landlord will incur by reason of
any such late payment and that the late charge is in addition to any
and all remedies available to the Landlord and that the assessment
and/or collection of the late charge shall not be deemed a waiver of
any other default. Additionally, all such delinquent Rent or other
sums, plus this late charge, shall bear interest at the rate of 18
percent per annum. If the interest rate specified in this Lease is
higher than the rate permitted by law, the interst rate is hereby
decreased to the maximum legal interest rate permitted by law. Any
payments of any kind returned for insufficient funds will be subject
to an additional handling charge of $25.00, and
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thereafter, Landlord may require Tenant to pay all future payments of
Rent or other sums due by money order or cashier's check.
5. PREPAID RENT. Upon the execution of this Lease, Tenant shall, in
addition to the payment of the first month's Rent as set forth in Section
4(a), pay to Landlord the prepaid Rent set forth in Section 1(i), and if
Tenant is not in default of any provisions of this Lease, such prepaid Rent
shall be applied toward Base Monthly Rent for the months set forth in
Section 1(i). Landlord's obligations with respect to the prepaid Rent are
those of a debtor and not of a trustee, and Landlord can commingle the
prepaid Rent with Landlord's general funds. Landlord shall not be required
to pay Tenant interest on the prepaid Rent. Landlord shall be entitled to
immediately endorse and cash Xxxxxx's prepaid Rent; however, such
endorsement and cashing shall not constitute Landlord's acceptance of this
Lease. In the event Landlord does not accept this Lease, Landlord shall
return said prepaid Rent.
6. DEPOSIT. Upon execution of this Lease, Tenant shall deposit a security
deposit and a cleaning fee as set forth in Section 1(j) with Landlord. If
twice within any 12 month period, late charges are assessed against Tenant
by Landlord, Landlord may, by written notice to Tenant, require Tenant to
pay Landlord an amount equal to one month's Base Rent as an increase in the
Security Deposit, which additional amount shall be due within 5 days after
Xxxxxx's receipt of the notice. If Tenant is in default, Landlord can use
the Security Deposit or any portion of it to cure the default or to
compensate Landlord for any damages sustained by Landlord resulting from
Xxxxxx's default. Upon demand, Xxxxxx shall immediately pay to Landlord a
sum equal to the portion of the Security Deposit expended or applied by
Landlord to restore the Security Deposit to its full amount. In no event
will Tenant have the right to apply any part of the Security Deposit to any
Rent or other sums due under this Lease. . If Landlord transfers its
interest in the Premises, Landlord shall transfer the Security Deposit to
its successor in interest, whereupon Landlord shall be automatically
released from any liability for the return of the Security Deposit. If, at
the end of the Lease Term, Xxxxxx has fully complied with all obligations
under this Lease, then the remaining Security Deposit shall be returned to
Tenant after Landlord has verified that Tenant has fully vacated the
Premises, removed all of its property and surrendered the Premises in the
condition required under this Lease; provided that Landlord may hold back a
portion of the Security Deposit until final determination of Tenant's share
of Common Expenses, whereupon a final adjustment shall be made and any
remaining Security Deposit shall be returned to Tenant. The Non-Refundable
Cleaning Fee shall be retained by Landlord. Landlord's obligations with
respect to the Security Deposit are those of a debtor and not of a trustee,
and Landlord can commingle the Security Deposit with Landlord's general
funds. Landlord shall not be required to pay Tenant interest on the
deposit. Each time the Base Monthly Rent is increased, Tenant shall deposit
additional funds with Landlord sum sufficient to increase the Security
Deposit to an amount which bears the same relationship to the adjusted Base
Monthly Rent as the initial Security Deposit bore to the initial Base
Monthly Rent.
7. USE OF PREMISES AND PROJECT FACILITIES. Tenant shall use the Premises
solely for the purposes set forth in Section 1 and for no other purpose
whatsoever without obtaining the prior written consent of Landlord. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Premises or with respect to
the suitability of the Premises or the Project for the conduct of Tenant's
business, nor has Landlord agreed to undertake any modification, alteration
or improvement to the Premises or the Project, except as provided in
writing in this Lease. Tenant acknowledges that Landlord may from time to
time, at its sole discretion, make such modifications, alterations,
deletions or improvements to the Project as Landlord may deem necessary or
desirable, without compensation or notice to Tenant. Tenant shall promptly
comply with all laws, ordinances, orders and regulations affecting the
Premises and the Project, including, without limitation, the rules and
regulations attached hereto as Exhibit D and any reasonable modifications
to these rules and regulations as Landlord may adopt from time to time.
Tenant acknowledges that, except for Landlord's obligations pursuant to
Section 13, Tenant is solely responsible for ensuring that the Premises
comply with any and all governmental regulations applicable to Tenant's
conduct of business on the Premises, and that Tenant is solely responsible
for any alterations or improvements that may be required by such
regulations, now existing or hereafter adopted. Tenant shall not do or
permit anything to be done in or about the Premises or bring or keep
anything in the Premises that will in any way increase the premiums paid by
Landlord on its insurance related to the Project or which will in any way
increase the premiums for fire or casualty insurance carried by other
tenants in the Project. Tenant will not perform any act or carry on any
practices that may injure the Premises or the Project; that may be a
nuisance or menace to other tenants in the Project; or that shall in any
way interfere with the quiet enjoyment of such other tenants. Tenant shall
not use the Premises for sleeping, washing clothes, cooking or the
preparation, manuafacture or mixing of anything that might emit any
objectionable ordor, noises, vibrations or lights onto such other tenants.
If sound insulation is required to muffle noise produced by Tenant on the
Prmises, Tenant at its own cost shall provide all necessary insulation.
Tenant shall not do
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anything on the premises which will overload any existing parking or
service to the Premises. Pets and/or animals of any type shall not be kept
on the Premises.
8. HAZARDOUS SUBSTANCES; DISRUPTIVE ACTIVITIES
a. HAZARDOUS SUBSTANCES.
(1) PRESENCE AND USE OF HAZARDOUS SUBSTANCES. As used in this Lease,
"Hazardous Substances" shall mean anything which may be harmful to persons or
property, including, but not limited to, materials designated as a "Hazardous
Substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as now or hereafter amended, 42 USC
9601, ET SEQ., or as a Hazardous Substance, Hazardous Household Substance,
Moderate Risk Waste or Hazardous Waste under RCW 70.105.010, or which is
regulated by any federal, state, or local law, statute, ordinance or regulation
pertaining to health, industrial hygiene or the environment. Tenant shall not,
without Landlord's prior written consent, keep on or around the Premises, Common
Areas or Building, for use, disposal, treatment, generation, storage or sale,
any Hazardous Substances except such Hazardous Substances as are commonly used
in general administrative office operations. With respect to any Hazardous
Substance, Tenant shall:
(i) Comply promptly, timely, and completely with all
governmental requirements for reporting, keeping, and submitting manifests, and
obtaining and keeping current identification numbers;
(ii) Submit to Landlord true and correct copies of all
reports, manifests, and identification numbers at the same time as they are
required to be and/or are submitted to the appropriate governmental authorities;
(iii) Within five (5) days of Landlord's request, submit
written reports to Landlord regarding Tenant's use, storage, treatment,
transportation, generation, disposal or sale of Hazardous Substances and provide
evidence satisfactory to Landlord of Tenant's compliance with the applicable
government regulations;
(iv) Allow Landlord or Landlord's agent or representative to
come on the premises at all times to check Tenant's compliance with all
applicable governmental regulations regarding Hazardous Substances;
(v) Comply with minimum levels, standards or other
performance standards or requirements which may be set forth or established for
certain Hazardous Substances (if minimum standards or levels are applicable to
Hazardous Substances present on the Premises, such levels or standards shall be
established by an on-site inspection by the appropriate governmental authorities
and shall be set forth in an addendum to this Lease); and
(vi) Comply with all applicable governmental rules,
regulations and requirements regarding the proper and lawful use, sale,
transportation, generation, treatment, and disposal of Hazardous Substances.
(2) Any and all costs incurred by Landlord and associated with
Xxxxxxxx's monitoring of Tenant's compliance with this Section 8,
including Landlord's attorneys' fees and costs, shall be
Additional Rent and shall be due and payable to Landlord
immediately upon demand by Landlord.
b. CLEANUP COSTS, DEFAULT AND INDEMNIFICATION.
(1) Tenant shall be fully and completely liable to Landlord for any
and all cleanup costs, and any and all other charges, fees, penalties (civil and
criminal) imposed by any governmental authority with respect to Tenant's use,
disposal, transportation, generation and/or sale of Hazardous Substances, in or
about the Premises, Common Areas, or Building.
(2) Tenant shall indemnify, defend and save Landlord and Xxxxxxxx's
lender, if any, harmless from any and all of the costs, fees, penalties and
charges assessed against or imposed upon Landlord (as well as Xxxxxxxx's and
Landlord's lender's attorneys' fees and costs) as a result of Tenant's use,
disposal, transportation, generation and/or sale of Hazardous Substances.
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(3) Upon Tenant's default under this Section 8, in addition to the
rights and remedies set forth elsewhere in this Lease, Landlord shall be
entitled to the following rights and remedies:
(i) At Landlord's option, to terminate this Lease
immediately; and/or
(ii) To recover any and all damages associated with the
default, including, but not limited to cleanup costs and charges, civil and
criminal penalties and fees, loss of business and sales by Landlord and other
tenants of the Building, any and all damages and claims asserted by third
parties and Xxxxxxxx's attorneys' fees and costs.
c. DISPOSAL OF WASTE
(1) Refuse Disposal. Tenant shall not keep any trash, garbage, waste
or other refuse on the Premises except in sanitary containers and shall
regularly and frequently remove same from the Premises. Tenant shall keep all
incinerators, containers or other equipment used for storage or disposal of such
materials in a clean and sanitary condition.
(2) Sewage Disposal. Tenant shall properly dispose of all sanitary
sewage and shall not use the sewage disposal system (a) for the disposal of
anything except sanitary sewage or (b) in excess of the lesser amount (i)
reasonably contemplated by the uses permitted under this Lease or (ii) permitted
by any governmental entity. Tenant shall keep the sewage disposal system free of
all obstructions and in good operating condition.
(3) Disposal of Other Waste. Tenant shall properly dispose of all
other waste or other matter delivered to, stored upon, located upon or within,
used on, or removed from, the Premises in such a manner that it does not, and
will not, adversely affect the (a) health or safety of persons, wherever
located, whether on the Premises or elsewhere (b) condition, use or enjoyment of
the Premises or any other real or personal property, wherever located, whether
on the Premises or anywhere else, or (c) Premises or any of the improvements
thereto or thereon including buildings, foundations, pipes, utility lines,
landscaping or parking areas.
d. DISRUPTIVE ACTIVITIES. Tenant shall not:
(1) Produce, or permit to be produced, any intense glare, light or
heat except within an enclosed or screened area and then only in such manner
that the glare, light or heat shall not, outside the Premises, be materially
different that the light or heat from other sources outside the Premises;
(2) Create, or permit to be created, any sound pressure level which
will interfere with the quiet enjoyment of any real property outside the
Premises, or which will create a nuisance or violate any governmental law, rule,
regulation or requirement;
(3) Create, or permit to be created, any ground vibration that is
materially discernible outside the Premises;
(4) Transmit, receive or permit to be transmitted or received, any
electromagnetic, microwave or other radiation which is harmful or hazardous to
any person or property in, or about the Project; or
(5) Create, or permit to be created, any noxious odor that is
disruptive to the business operations of any other tenant in the Project.
9. SIGNAGE. All signing shall comply with rules and regulations set forth
by Landlord as may be modified from time to time. Current rules and
regulations relating to signs are described on Exhibit E. Tenant shall
place no window covering (e.g., shades, blinds, curtains, drapes, screens,
or tinting materials), stickers, signs, lettering, banners or advertising
or display material on or near exterior windows or doors if such materials
are visible from the exterior of the Premises, without Landlord's prior
written consent. Similarly, Tenant may not install any alarm boxes, foil
protection tape or other security equipment on the Premises without
Landlord's prior written consent. Any material violating this provision may
be destroyed by Landlord without compensation to Tenant.
10. PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency all
taxes, assessments, license fees and public charges levied, assessed or
imposed upon its business operations as well as upon all trade fixtures,
leasehold improvements, merchandise and other personal property in or about
the Premises.
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11. PARKING. Landlord grants to Tenant and Tenant's customers, suppliers,
employees and invitees, a non-exclusive license to use the designated
parking areas in the Project for the use of motor vehicles during the term
of this Lease. Landlord reserves the right at any time to grant similar
non-exclusive use to other tenants, to promulgate rules and regulations
relating to the use of such parking areas, including reasonable
restrictions on parking by tenants and employees, to designate specific
spaces for the use of any tenant, to make changes in the parking layout
from time to time, and to establish reasonable time limits on parking.
Overnight parking is prohibited and any vehicle violating this or any other
vehicle regulation adopted by Landlord is subject to removal at the owner's
expense.
12. UTILITIES; SERVICES. Landlord shall furnish the Premises with electricity
for office use, including lighting and low power usage for office machines
and water for restroorn facilities. From 7:00 a.m. to 6:00 p.m. on weekdays
and 9:00 a.m. to 1:00 p.m. on Saturday, excluding legal holidays ("Normal
Business Hours"), Landlord shall furnish the Premises with heat and air
conditioning services as required, in Landlord's judgment, for the
comfortable use and occupancy of the Premises. Landlord shall provide
further services (such as janitorial services and trash disposal) if
Landlord and Tenant specifically agree to such additional services and
identify such services with specificity on Exhibit F hereto. If requested
by Tenant, Landlord shall furnish heat and air conditioning services at
times other than Normal Business Hours, and supplements to Exhibit F
special services, and Tenant shall pay for such additional services as
additional rent at such rates as Landlord may establish from time to time.
The mechanical system is designed to accommodate heating loads generated by
the types and quantities of lights and equipment commonly found in suburban
office park general administrative offices. Before installing lights and
equipment in the Premises which in the aggregate exceed such amount (e.g.
devoting the Premises to high density computer work station operations) or
require a voltage other than 120 volts single phase, Tenant shall obtain
the written permission of Landlord. Landlord may refuse to grant such
permission unless Xxxxxx agrees to pay Landlord's costs of installing any
supplementary air conditioning or electrical systems required by such
equipment or lights. In addition, Tenant shall pay Landlord in advance, as
additional rent, on the first day of each month during the Term, the amount
estimated by Landlord as the cost of furnishing electricity for the
operation of such equipment or lights and the amount estimated by Landlord
as the cost of operating and maintaining supplementary air conditioning
units necessitated by Tenant's use of such equipment or lights. Landlord
shall be entitled to install and operate, at Tenant's cost, a
monitoring/metering system in the Premises to measure the added demands on
electricity and the HVAC systems resulting from such equipment and lights,
and from Tenant's HVAC requirements during other than Normal Business
Hours. Tenant shall comply with Xxxxxxxx's instruction for the use of
drapes, blinds and thermostats. Tenant acknowledges that Landlord shall
have sole control over the determination of what utility providers serve
the Project, and Landlord shall have no obligation to give access or
easement rights or otherwise allow onto the Project any utility providers
except those approved by Landlord in its discretion. . If, for any reason,
Landlord permits Tenant to purchase utility services from a provider other
than Landlord's designated compan(ies), such provider shall be considered a
contractor of Tenant and Tenant shall indemnify defend and hold Landlord
harmless from such provider's acts and omissions while in, or in connection
with their services to, the Building or Project in accordance with the
terms and conditions of Article 15. In addition, Tenant shall allow
Landlord to purchase such utility service from Tenant's provider at
Tenant's rate or at such lower rate as can be negotiated by the aggregation
of Landlord's tenants' requirements for such utility.
Except for the costs of above-building standard and/or after-hours
services, which shall be paid directly by Tenant, the costs of all
utilities and services provided pursuant to this Section 12 shall be
Expenses allocated to Tenant as part of Tenant's Share of Expenses pursuant
to Section 4(b). above. Tenant shall pay when due and directly to the
service provider any telephone or other services metered, chargeable or
provided to the Premises and not charged as part of Tenant's Share of
Expenses.
Landlord does not warrant that any utilities or services will be free from
interruption including by reason of accident, repairs, alterations or
improvements and including by reason of computer programming weaknesses
known generally as the "Year 2000" problem. No utility interruption shall
be deemed an eviction or disturbance of Tenant, or render Landlord liable
to Tenant for damages, or relieve Tenant from the full and complete
performance of all of Tenant's obligations under this Lease.
Landlord shall provide such security for the Project as it deems
appropriate. During other than Normal Business Hours, Landlord may restrict
access to the Project in accordance with the Project's security system.
Landlord shall not be liable to Tenant for injury to its agents, employees,
customers or invitees, or for losses due to theft or burglary, or for
damages done by unauthorized persons in the Project.
8
Landlord shall provide five keys for the corridor door entering the
Premises, and additional keys at a charge by Landlord on an order signed by
Tenant. All such keys shall remain the property of Landlord. No additional
locks shall be allowed on any door of the Premises without Landlord's
written permission, and Tenant shall not make, or permit to be made, any
duplicate keys, except those furnished by Landlord. Upon termination of
this Lease, Xxxxxx shall surrender to Landlord all keys to the Premises.
13. MAINTENANCE. Landlord shall maintain, in good condition, the structural
parts of the Premises, which shall include only the foundations, bearing
and exterior walls (excluding glass), subflooring and roof (excluding
skylights), the unexposed electrical, plumbing and sewerage systems,
including those portions of the systems lying outside the Premises, gutters
and downspouts on the Building and the heating, ventilating and air
conditioning system servicing the Premises; provided, however, the cost of
all such maintenance shall be considered "Expenses" for purposes of Section
4(b). Except as provided above, Tenant shall maintain and repair the
Premises in good condition, including, without limitation, maintaining and
repairing all walls, storefronts, floors, ceilings, interior and exterior
doors, exterior and interior windows and fixtures and interior plumbing as
well as damage caused by Tenant, its agents, employees or invitees. Upon
expiration or termination of this Lease, Xxxxxx shall surrender the
Premises to Landlord in the same condition as existed at the commencement
of the term, except for reasonable wear and tear or damage caused by fire
or other casualty for which Xxxxxxxx has received all funds necessary for
restoration of the Premises from insurance proceeds.
14. ALTERATIONS. Tenant shall not make any alterations to the Premises, or to
the Project, including any changes to the existing landscaping, without
Landlord's prior written consent. If Landlord gives its consent to
alterations, Landlord may post notices in accordance with the laws of the
state in which the premises are located. Any alterations made shall remain
on and be surrendered with the Premises upon expiration or termination of
this Lease, except that Landlord may at the time of consent, elect to
require Tenant to remove any alterations which Tenant may have made to the
Premises. If Landlord so elects, at its own cost Tenant shall restore the
Premises to the condition designated by Landlord in its election, before
the last day of the term or within 30 days after notice of its election is
given, whichever is later.
Should Landlord consent in writing to Tenant's alteration of the Premises,
Tenant shall contract with a contractor approved by Landlord for the
construction of such alterations, shall secure all appropriate governmental
approvals and permits, and shall complete such alterations with due
diligence in compliance with plans and specifications approved by Landlord.
All such construction shall be performed in a manner which will not
interfere with the quiet enjoyment of other tenants of the Project. Tenant
shall pay all costs for such construction and shall keep the Premises and
the Project free and clear of all mechanics' liens which may result from
construction by Tenant. Tenant shall not use any portion of the common
areas in connection with an alteration without the prior written consent of
Landlord.
15. RELEASE AND INDEMNITY.
A. INDEMNITY. Tenant shall indemnify, defend (using legal counsel
acceptable to Landlord) and save Landlord and its property manager
harmless from all claims, suits, losses, damages, fines, penalties,
liabilities and expenses (including Landlord's personnel and overhead
costs and attorneys fees and other costs incurred in connection with
claims, regardless of whether such claims involve litigation)
resulting from any actual or alleged injury (including death) of any
person or from any actual or alleged loss of or damage to, any
property arising out of or in connection with (i) Tenant's occupation,
use or improvement of the Premises, or that of its employees, agents
or contractors, (ii) Tenant's breach of its obligations hereunder, or
(iii) any act or omission of Tenant or any subtenant, licensee,
assignee or concessionaire of Tenant, or of any OFFICER, AGENT,
employee, guest or invitee of Tenant, or of any such entity in or
about the Premises. Xxxxxx agrees that the foregoing indemnity
specifically covers actions brought by its own employees. This
indemnity with respect to acts or omissions during the term of this
Lease shall survive termination or expiration of this Lease. The
foregoing indemnity is specifically and expressly intended to,
constitute a waiver of Tenant's immunity under Washington's Industrial
Insurance Act, RCW Title 51, to the extent necessary to provide
Landlord with a full and complete indemnity from claims made by Tenant
and its employees, to the extent provided herein. Tenant shall
promptly notify Landlord of casualties or accidents occurring in or
about the Premises. XXXXXXXX AND TENANT ACKNOWLEDGE THAT THE
INDEMNIFICATION PROVISIONS OF SECTION 8 AND THIS SECTION 15 WERE
SPECIFICALLY NEGOTIATED AND AGREED UPON BY THEM.
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B. LANDLORD INDEMNITY. Except as otherwise provided in this Section 15,
Landlord shall indemnify, defend (using legal counsel reasonably
acceptable to Tenant) and save Tenant harmless from all claims, suits,
losses, fines, penalties, liabilities and expenses (including Tenant's
personnel and overhead costs and attorneys' fees and other costs
incurred in connection with claims, regardless of whether such claims
involve litigation, but excluding consequential damages such as lost
profits) resulting from any actual or alleged injury (including death)
of any person or from any actual or alleged loss of or damage to, any
property to the extent caused by the intentional misconduct or gross
negligence of Landlord or of any employee or agent of Landlord in the
Common Areas. Xxxxxxxx agrees that the foregoing indemnity
specifically covers actions brought by its own employees. This
indemnity with respect to actions or omissions during the term of this
Lease shall survive termination or expiration of this Lease. The
foregoing indemnity is specifically and expressly intended to
constitute a waiver of Landlord's immunity under Washington's
Industrial Insurance Act, RCW Title 51, to the extent necessary to
provide Tenant with a full and complete indemnity from claims made by
Landlord and its employees to the extent of their negligence.
C. RELEASE. Tenant hereby fully and completely waives and releases all
claims against Landlord for any losses or other damages sustained by
Tenant or any person claiming through Tenant resulting from any
accident or occurrence in or upon the Premises, including but not
limited to: any defect in or failure of Project equipment; any failure
to make repairs; any defect, failure, surge in, or interruption of
Project facilities or services; any defect in or failure of Common
Areas; broken glass; water leakage; the collapse of any Building
component; or any act, omission or negligence of co-tenants, licensees
or any other persons or occupants of the Building, provided only that
the release contained in this Section 15(b) shall not apply to claims
for actual damage to persons or property (excluding consequential
damages such as lost profits) resulting directly from Xxxxxxxx's
breach of its express obligations under this Lease which Landlord has
not cured within a reasonable time after receipt of written notice of
such breach from Tenant. Notwithstanding any other provision of this
Lease, and to the fullest extent permitted by law,Tenant hereby agrees
that Landlord shall not be liable for injury to Tenant's business or
any loss of income therefrom, whether such injury or loss results from
conditions arising upon the Premises or the Project, or from other
sources or places including, without limitation, any interruption of
services and utilities or any casualty, or from any cause whatsoever,
including, Landlord's negligence, and regardless of whether the cause
of such injury or loss or the means of repairing the same is
inaccessible to Landlord or Tenant. Tenant may elect, at its sole cost
and expense, to obtain business interruption insurance with respect to
such potential injury or loss,
D. LIMITATION ON INDEMNITY. In compliance with RCW 4.24.115 as in effect
on the date of this Lease, all provisions of this Lease pursuant to
which Landlord or Tenant (the "Indemnitor") agrees to indemnify the
other (the "Indemnitee") against liability for damages arising out of
bodily injury to Persons or damage to property relative to the
construction, alteration, repair, addition to, subtraction from,
improvement to, or maintenance of, any building, road, or other
structure, project, development, or improvement attached to real
estate, including the Premises, (i) shall not apply to damages caused
by or resulting from the sole negligence of the Indemnitee, its agents
or employees, and (ii) to the extent caused by or resulting from the
concurrent negligence of (a) the Indemnitee or the Indemnitee's agents
or employees, and (b) the Indemnitor or the Indemnitor's agents or
employees, shall apply only to the extent of the Indemnitor's
negligence; PROVIDED, HOWEVER, the limitations on indemnity set forth
in this Section shall automatically and without further act by either
Landlord or Tenant be deemed amended so as to remove any of the
restrictions contained in this Section no longer required by then
applicable law.
E. DEFINITIONS. As used in any Section establishing indemnity or release
of Landlord, "Landlord" shall include Landlord, its partners,
officers, agents, employees and contractors, and "Tenant" shall
include Tenant and any person or entity claiming through Tenant.
16. INSURANCE. Tenant shall, throughout the term of this Lease and any renewal
hereof, at its own expense, keep and maintain in full force and effect, a
policy of commercial general liability (occurrence form) insurance,
including contractual liability (including Tenant's indemnification
obligations under this Lease) insuring Tenant's activities upon, in or
about the Premises or the Project, against claims of bodily injury of death
or property damage or loss with a combined single limit of not less than
One Million Dollars ($1,000,000) per ocurrence and Two Million Dollars
($2,000,000) in aggregate, with such increases in limits as Landlord may
from time to time require consistent with insurance requirements of
10
institutional landlords in similar projects in the area. If Tenant
manufactures on the Premises consumer goods using any materials supplied by
Landlord (including but not limited to water supplied as part of utilities
to the Premises), Tenant's insurance shall include products liability
insurance in the amounts specified for the commercial general liability
insurance.
Tenant shall further, throughout the term of this Lease and any renewal
thereof, at its own expense, keep and maintain in fill force and effect,
what is commonly referred to as "Special Cause of Loss" or "Special"
coverage insurance (excluding earthquake and flood) on tenant's leasehold
improvements in an amount equal to one hundred percent (100%) of the
replacement value thereof with a coinsurance waiver. The proceeds from any
such policy shall be used by Tenant for the restoration of Tenant's
improvements or alterations. As used in this Lease, "tenant's leasehold
improvements" shall mean any alterations, additions or improvements
installed in or about the Premises by or with Landlord's permission or
otherwise permitted by this Lease, whether or not the cost thereof was paid
for by Xxxxxx.
All insurance required to be provided by Tenant under this Lease: (a) shall
be issued by Insurance companies authorized to do business in the state in
which the premises are located with a financial rating of at least an A+X
status as rated in the most recent edition of Best's Insurance Reports; (b)
shall be issued as a primary policy; shall be on an occurrence basis; (c)
name Landlord and Landlord's property manager as additional insured; and
(d) shall contain an endorsement requiring at least 30 days prior written
notice of cancellation to Landlord and Landlord's lender, before
cancellation or change in coverage, scope or amount of any policy. Tenant
shall deliver a certificate or copy of such policy together with evidence
of payment of all current premiums to Landlord within 30 days of execution
of this Lease and at the time of all renewals thereof. If Tenant fails at
any time to maintain the insurance required by this Lease, and fails to
cure such default within five (S) business days of written notice from
Landlord then, in addition to all other remedies available under this Lease
and applicable law, Landlord may purchase such insurance on Tenant's behalf
and the cost of such insurance shall be Additional Rent due within ten (10)
days of written invoice from Landlord to Tenant.
Tenant hereby releases Landlord, and waives its entire right of recovery
for loss or damage to property located within or constituting a part or all
of the Building or the Project to the extent that the loss or damage is
covered by (a) Tenant's insurance, or (b) the insurance Tenant is required
to carry under this Article 16, whichever is greater. This waiver applies
whether or not the loss is due to the negligent acts or omissions of
Landlord or Tenant, or their respective officers, directors, employees,
agents, contractors, or invitees. Tenant shall have its insurers endorse
the applicable insurance policies to reflect the foregoing waiver of
claims, provided however, that the endorsement shall not be required if the
applicable policy of insurance permits the named insured to waive rights of
subrogation on a blanket basis, in which case the blanket waiver shall be
acceptable
17. DESTRUCTION. If during the term, the Premises or Project are more than 10%
destroyed from any cause, or rendered inaccessible or unusable from any
cause, Landlord may, in its sole discretion, terminate this Lease by
delivery of notice to Tenant within 30 days of such event without
compensation to Tenant. If in Landlord's estimation, the Premises cannot be
restored within 90 days following such destruction, the Landlord shall
notify Tenant and Tenant may terminate this Lease by delivery of notice to
Landlord within 30 days of receipt of Landlord's notice. If neither
Landlord nor Tenant terminates this Lease as provided above, then Landlord
shall commence to restore the Premises in compliance with then existing
laws and shall complete such restoration with due diligence. In such event,
this Lease shall remain in full force and effect, but there shall be an
abatement of Base Monthly Rent and Xxxxxx's Share of Expenses between the
date of destruction and the date of completion of restoration, based on the
extent to which destruction interferes with Xxxxxx's use of the Premises.
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18. CONDEMNATION.
A. TAKING. If all of the Premises are taken by Eminent Domain, this Lease
shall terminate as of the date Tenant is required to vacate the
Premises and all Base and Additional Rent shall be paid to that date.
The term "Eminent Domain" shall include the taking or damaging of
property by, through or under any governmental or statutory authority,
and any purchase or acquisition in lieu thereof, whether the damaging
or taking is by government or any other person. If, in the reasonable
judgment of Landlord, a taking of any part of the Premises by Eminent
Domain renders the remainder thereof unusable for the business of
Tenant (or the cost of restoration of the Premises is not commercially
reasonable), the Lease may, at the option of either party, be
terminated by written notice given to the other party not more than
thirty (30) days after Landlord gives Tenant written notice of the
taking, and such termination shall be effective as of the date when
Tenant is required to vacate the portion of the Premises so taken. If
this Lease is so terminated, all Base and Additional Rent shall be
paid to the date of termination. Whenever any portion of the Premises
is taken by Eminent Domain and this Lease is not terminated, Landlord
shall at its expense proceed with all reasonable dispatch to restore,
to the extent of available proceeds and to the extent it is reasonably
prudent to do so, the remainder of the Premises to the condition they
were in immediately prior to such taking, and Tenant shall at its
expense proceed with all reasonable dispatch to restore its personal
property and all improvements made by it to the Premises to the same
condition they were in immediately prior to such taking. The Base and
Additional Rent payable hereunder shall be reduced from the date
Tenant is required to partially vacate the Premises in the same
proportion that the Rentable Area taken bears to the total Rentable
Area of the Premises prior to taking.
B. AWARD. Landlord reserves all right to the entire damage award or
payment for any taking by Eminent Domain, and Tenant waives all claim
whatsoever against Landlord for damages for termination of its
leasehold interest in the Premises or for interference with its
business. Tenant hereby grants and assigns to Landlord any right
Tenant may now have or hereafter acquire to such damages and agrees to
execute and deliver such further instruments of assignment as Landlord
may from time to time request. Tenant shall, however, have the right
to claim from the condemning authority all compensation that may be
recoverable by Tenant on account of any loss incurred by Tenant in
moving Tenant's merchandise, furniture, trade fixtures and equipment,
provided, however, that Tenant may claim such damages only if they are
awarded separately in the eminent domain proceeding and not out of or
as part of Landlord's damages.
19. ASSIGNMENT OR SUBLEASE. Tenant shall not assign or encumber its interest
in this Lease or the Premises or sublease all or any part of the Premises
or allow any other person or entity (except Tenant's authorized
representatives, employees, invitees, or guests) to occupy or use all or
any part of the Premises without first obtaining Landlord's consent which
shall not be unreasonably withheld, conditioned or delayed for tenant's
meeting the then project standard for creditworthiness and use.. No
assignment or sublease shall release Tenant from the obligation to perform
all obligations under this Lease. Any assignment, encumbrance or sublease
without Landlord's written consent shall be voidable and at Landlord's
election, shall constitute a default. If Tenant is a partnership, a
withdrawal or change, voluntary, involuntary or by operation of law of any
partner, or the dissolution of the partnership, shall be deemed a voluntary
assignment. If Tenant consists of more than one person, a purported
assignment, voluntary or involuntary or by operation of law from one person
to the other shall be deemed a voluntary assignment. If Tenant is a
corporation, any dissolution, merger, consolidation or other reorganization
of Tenant, or sale or other transfer of a controlling percentage of the
capital stock of Tenant, or the sale of at least 25% of the value of the
assets of Tenant shall be deemed a voluntary assignment. The phrase
"controlling percentage" means ownership of and right to vote stock
possessing at least 25% of the total combined voting power of all classes
of Tenant's capital stock issued, outstanding and entitled to vote for
election of directors. This Section 19 shall not apply to corporations the
stock of which is traded through an exchange or over the counter. All rent
received by Tenant from its subtenants in excess of the Rent payable by
Tenant to Landlord under this Lease shall be paid to Landlord, or any sums
to be paid by an assignee to Tenant in consideration of the assignment of
this Lease shall be paid to Landlord. If Xxxxxx requests Xxxxxxxx to
consent to a proposed assignment or subletting. Tenant shall pay to
Landlord, whether or not consent is ultimately given, $100 or Landlord's
reasonable attorney's fees incurred in connection with such request,
whichever is greater.
12
No interest of Tenant in this Lease shall be assignable by involuntary
assignment through operation of law (including without limitation the
transfer of this Lease by testacy or intestacy). Each of the following acts
shall be considered an involuntary assignment: (a) if Tenant is or becomes
bankrupt or insolvent, makes an assignment for the benefit of creditors, or
institutes proceedings under the Bankruptcy Act in which Tenant is the
bankrupt; or if Tenant is a partnership or consists of more than one person
or entity, if any partner of the partnership or other person or entity is
or becomes bankrupt or insolvent, or makes an assignment for the benefit of
creditors; or (b) if a writ of attachment or execution is levied on this
Lease; or (c) if in any proceeding or action to which Tenant is a party, a
receiver is appointed with authority to take possession of the Premises. An
involuntary assignment shall constitute a default by Tenant and Landlord
shall have the right to elect to terminate this Lease, in which case this
Lease shall not be treated as an asset of Tenant.
20. DEFAULT. The occurrence of any of the following shall constitute a default
by Tenant: (a) a failure to pay Rent or other charge when due; (b)
abandonment and vacation of the Premises (failure to occupy and operate the
Premises for ten consecutive days shall be conclusively deemed an
abandonment and vacation); or (c) failure to perform any other provision of
this Lease.
21. LANDLORD'S REMEDIES. Landlord shall have the following remedies if Tenant
is in default. (These remedies are not exclusive; they are cumulative and
in addition to any remedies now or later allowed by law): Landlord may
terminate Tenant's right to possession of the Premises at any time. No act
by Landlord other than giving notice to Tenant shall terminate this Lease.
Acts of maintenance, efforts to relet the Premises, or the appointment of a
receiver on Landlord's initiative to protect Xxxxxxxx's interest under this
Lease shall not constitute a termination of Tenant's right to possession.
Upon termination of Tenant's right to possession, Landlord has the right to
recover from Tenant: (1) the worth of the unpaid Rent that had been earned
at the time of termination of Tenant's right to possession; (2) the worth
of the amount of the unpaid Rent that would have been earned after the date
of termination of Tenant's right to possession less the amount that Tenant
proves Landlord should be able to earn during such period net of all
releasing costs; (3) any other amount, including but not limited to,
expenses incurred to relet the Premises, court, attorney and collection
costs, necessary to compensate Landlord for all detriment caused by
Xxxxxx's default. "The Worth," as used for Item (1) in this Paragraph 21 is
to be computed by allowing interest at the rate of 18 percent per annum. If
the interest rate specified in this Lease is higher than the rate permitted
by law, the interest rate is hereby decreased to the maximum legal interest
rate permitted by law. "The Worth" as used for Item (2) in this Paragraph
21 is to be computed by discounting the amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of termination of
Tenant's right of possession.
22. ENTRY ON PREMISES. Landlord and its authorized representatives shall have
the right to enter the Premises at all reasonable times for any of the
following purposes: (a) to determine whether the Premises are in good
condition and whether Tenant is complying with its obligations under this
Lease; (b) to do any necessary maintenance and to make any restoration to
the Premises or the Project that Landlord has the right or obligation to
perform; (c) to post "for sale" signs at any time during the term, to post
"for rent" or "for lease" signs during the last 90 days of the term, or
during any period while Tenant is in default; (d) to show the Premises to
prospective brokers, agents, buyers, tenants or persons interested in
leasing or purchasing the Premises, at any time during the term; or (e) to
repair, maintain or improve the Project and to erect scaffolding and
protective barricades around and about the Premises but not so as to
prevent entry to the Premises and to do any other act or thing necessary
for the safety or preservation of the Premises or the Project. Landlord
shall not be liable in any manner for any inconvenience, disturbance, loss
of business, nuisance or other damage arising out of Landlord's entry onto
the Premises as provided in this Section 22. Tenant shall not be entitled
to an abatement or reduction of Rent if Landlord exercises any rights
reserved in this Section 22. Landlord shall conduct his activities on the
Premises as provided herein in a commercially reasonable manner so as to
limit inconvenience, annoyance or disturbance to Tenant to the maximum
extent practicable. For each of these purposes, Landlord shall at all times
have and retain a key with which to unlock all the doors in, upon and about
the Premises, excluding Xxxxxx's vaults and safes. Tenant shall not alter
any lock or install a new or additional lock or bolt on any door of the
Premises without prior written consent of Landlord. If Landlord gives its
consent, Tenant shall furnish Landlord with a key for any such lock.
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23. SUBORDINATION; ESTOPPEL CERTIFICATE.
A. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and
at the election of Landlord or any mortgagee or any beneficiary of a
Deed of Trust with a lien on the Project or any ground lessor with
respect to the Project, this Lease shall be subject and subordinate at
all times to (a) all ground leases or underlying leases which may now
exist or hereafter be executed affecting the Project, and (b) the lien
of any mortgage or deed of trust which may now exist or hereafter be
executed in any amount for which the Project, ground leases or
underlying leases, or Landlord's interest or estate in any of said
items is specified as security. In the event that any ground lease or
underlying lease terminates for any reason or any mortgage or Deed of
Trust is foreclosed or a conveyance in lieu of foreclosure is made for
any reason, Tenant shall, notwithstanding any subordination, attorn to
and become the Tenant of the successor in interest to Landlord, at the
option of such successor in interest. Tenant covenants and agrees to
execute and deliver, upon demand by Xxxxxxxx and in the form requested
by Landlord any additional documents evidencing the priority or
subordination of this Lease with respect to any such ground lease or
underlying leases or the lien of any such mortgage or Deed of Trust.
Tenant hereby irrevocably appoints Landlord as attorney-in-fact of
Tenant to execute, deliver and record any such document in the name
and on behalf of Xxxxxx.
B. ESTOPPEL CERTIFICATE. Tenant shall, within 10 days of demand, execute
and deliver to Landlord a written statement certifying; (i) the
commencement and the expiration date of the Term; (ii) the amount of
Base Rent and the date to which it has been paid; (iii) that this
Lease is in full force and effect and has not been assigned or amended
in any way (or specifying the date and terms of each agreement so
affecting this Lease) and that no part of the Premises has been sublet
(or to the extent such is not the case, a copy of any sublease); (iv)
that Landlord is not in default under this Lease (or if such is not
the case, the extent and nature of such default); (v) on the date of
such certification, there are no existing defenses or claims which
Tenant has against Landlord (or if such is not the case, the extent
and nature of such defenses or claims); (vi) the amount of the
Security Deposit held by Landlord; and (vii) any other fact or
representation that a mortgagee or purchaser may reasonably request.
It is intended that any such statement shall be binding upon Tenant
and may be relied upon by a prospective purchaser or mortgagee. If
Tenant fails to respond within 10 days of receipt of a written request
by Landlord therefor, (a) Tenant shall be deemed to have given a
certificate as above provided, without modification, and shall be
conclusively deemed to have admitted the accuracy of any information
supplied by Landlord to a prospective purchaser or mortgagee, and (b)
Landlord may impose a fee of $100 per day for each day of delay in
providing the statement by Xxxxxx after the 10 day period.
24. NOTICE. Any notice, demand or request required hereunder shall be given in
writing to the party's facsimile number or address set forth in Section 1
hereof by any of the following means: (a) personal service; (b) electronic
communication, whether by telex, telegram or facsimile with electronic
confirmation; (c) overnight courier; or (d) registered or certified, first
class mail, return receipt requested. Such addresses may be changed by
notice to the other parties given in the same manner as above provided. Any
notice, demand or request sent pursuant to either subsection (a) or (b)
hereof shall be deemed received upon such personal service or upon dispatch
by electronic means with electronic confirmation of receipt. Any notice,
demand or request sent pursuant to subsection (c) hereof shall be deemed
received on the business day immediately following deposit with the
overnight courier and, if sent pursuant to subsection (d), shall be deemed
received forty-eight (48) hours following deposit in the U. S. mail. Tenant
hereby appoints as its agent to receive the service of all dispossessory or
distraint proceedings and notices thereunder the person in charge of or
occupying the Premises at the time, and, if no person shall be in charge of
occupying the same, then such service may be made by attaching the same on
the main entrance of the Premises.
25. WAIVER No delay or omission in the exercise of any right or remedy by
Landlord shall impair such right or remedy or be construed as a waiver. No
act or conduct of Landlord, including without limitation, acceptance of the
keys to the Premises, shall constitute an acceptance of the surrender of
the Premises by Tenant before the expiration of the term. Only written
notice from Landlord to Tenant shall constitute acceptance of the surrender
of the Premises and accomplish termination of the Lease. Xxxxxxxx'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 Xxxxxx. Any waiver by
Landlord of any default must be in writing and shall not be a waiver of any
other default concerning the same or any other provision of the Lease.
TENANT SPECIFICALLY
14
ACKNOWLEDGES AND AGREES THAT, WHERE TENANT HAS RECEIVED A NOTICE TO CURE
DEFAULT (WHETHER RENT OR NON-RENT), NO ACCEPTANCE BY LANDLORD OF RENT SHALL
BE DEEMED A WAIVER OF SUCH NOTICE, AND, INCLUDING BUT WITHOUT LIMITATION,
NO ACCEPTANCE BY LANDLORD OF PARTIAL RENT SHALL BE DEEMED TO WAIVE OR CURE
ANY RENT DEFAULT. LANDLORD MAY, IN ITS DISCRETION, AFTER RECEIPT OF
PARTIAL PAYMENT OF RENT, REFUND SAME AND CONTINUE ANY PENDING ACTION TO
COLLECT THE FULL AMOUNT DUE, OR MAY MODIFY ITS DEMAND TO THE UNPAID
PORTION. IN EITHER EVENT THE DEFAULT SHALL BE DEEMED UNCURED UNTIL THE FULL
AMOUNT IS PAID IN GOOD FUNDS.
26. SURRENDER OF PREMISES; HOLDING OVER. Upon expiration of the term, Xxxxxx
shall surrender to Landlord the Premises and all Tenant improvements and
alterations in good condition, except for ordinary wear and tear and
alterations Tenant has the right or is obligated to remove under the
provisions of Section 14 herein. Tenant shall remove all personal property
including, without limitation, all data and phone wires, wallpaper,
paneling and other decorative improvements or fixtures and shall perform
all restoration made necessary by the removal of any alterations or
Tenant's personal property before the expiration of the term, including for
example, restoring all wall surfaces to their condition prior to the
commencement of this Lease. Landlord can elect to retain or dispose of in
any manner Xxxxxx's personal property not removed from the Premises by
Tenant prior to the expiration of the term. Tenant waives all claims
against Landlord for any damage to Tenant resulting from Xxxxxxxx's
retention or disposition of Xxxxxx's personal property. Tenant shall be
liable to Landlord for Landlord's cost for storage, removal or disposal of
Tenant's personal property.
If Xxxxxx, with Xxxxxxxx's consent, remains in possession of the Premises
after expiration or termination of the term, or after the date in any
notice given by Landlord to Tenant terminating this Lease, such possession
by Tenant shall be deemed to be a month-to-month tenancy terminable as
provided under Washington law, by either party. All provisions of this
Lease, except those pertaining to term and Rent, shall apply to the
month-to-month tenancy. During any holdover term, Tenant shall pay Base
Monthly Rent in an amount equal to 150% of Base Monthly Rent for the last
full calendar month during the regular term plus 100% of Tenant's share of
Expenses pursuant to Section 4(b)(3). If Xxxxxx fails to surrender
possession of the Premises upon termination or expiration of this Lease and
if Tenant does not obtain Landlord's written consent to Xxxxxx's continued
occupancy, then Tenant shall be deemed a trespasser and shall be liable to
Landlord for all damages sustained by Landlord as a result thereof,
together with Base Rate at a rate double the Latest Rate.
27. LIMITATION OF LANDLORD'S LIABILITY. In consideration of the benefits
accruing hereunder, Xxxxxx agrees that, in the event of any actual or
alleged failure, breach or default of this Lease by Landlord, Landlord's
liability under this Lease shall be limited to, and Tenant shall look only
to Landlord interest in the Project and the rents and proceeds thereof.
28. BUILDING PLANNING. If Landlord requires the Premises for use in conjunction
with another suite or for other reasons connected with the Project planning
program, upon notifying Tenant with sixty (60) days prior notice in
writing, Landlord shall have the right to move Tenant to other space in the
Project that is substantially the same in size, configuration and tenant
improvements, such move (including out of-pocket ancillary costs such as
reprinting of stationary and commercially reasonable moving expenses) to be
at Landlord's sole cost and expense. Upon such move, the terms and
conditions of the original Lease shall remain in full force and effect,
save and excepting that a revised Exhibit "A" shall become part of this
Lease and shall reflect the location of the new space and Section 1 of this
Lease shall be amended to include and state all correct data as to the new
space.
15
29. MISCELLANEOUS PROVISIONS.
A. TIME OF ESSENCE. Time is of the essence of each provision of this
Lease.
B. SUCCESSOR. This Lease shall be binding on and inure to the benefit of
the parties and their successors, except as provided in Section 19
herein.
C. LANDLORD'S CONSENT. Any consent required by Landlord under this Lease
must be granted in writing and may be withheld or conditioned by
Landlord in its sole and absolute discretion.
D. COMMISSIONS. Each party represents that it has not had dealings with
any real estate broker, finder or other person with respect to this
Lease in any manner, except for the broker(s) identified in Section 1,
who shall be compensated by Landlord. Landlord and Tenant recognize
that it is possible that they may hereafter make additional agreements
regarding further extension or renewal of this Lease or a new lease or
leases for all or one or more parts of the Premises or other space in
the Project for a term or terms commencing after the Commencement Date
of this Lease. Landlord and Xxxxxx recognize that it is also possible
that they may hereafter modify this Lease to add additional space or
to substitute space as part of the Premises. If any such additional
agreements, new leases or modifications to this Lease are made,
Landlord shall not have any obligation to pay any compensation to any
real estate broker or to any other third person engaged by Tenant to
render services to Tenant in connection with negotiating such matters,
regardless of whether under the circumstances such person is or is not
regarded by the law as an agent of Landlord.
E. OTHER CHARGES. If either party commences any litigation against the
other party or files an appeal of a decision arising out of or in
connection with the Lease, the prevailing party shall be entitled to
recover from the other party reasonable attorney's fees and costs of
suit. If Landlord employs a collection agency to recover delinquent
charges, Xxxxxx agrees to pay all collection agency and attorneys'
fees charged to Landlord in addition to Rent, late charges, interest
and other sums payable under this Lease. Tenant shall pay a charge of
$75 to Landlord for preparation of a demand for delinquent Rent.
F. FORCE MAJEURE. Landlord shall not be deemed in default hereof nor
liable for damages arising from its failure to perform its duties or
obligations hereunder if such is due to causes beyond its reasonable
control, including, but not limited to, acts of God, acts of civil or
military authorities, fires, floods, windstorms, earthquakes, strikes
or labor disturbances, civil commotion, delays in transportation,
governmental delays or war.
G. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with
the "Rules and Regulations", a copy of which is attached hereto, and
all reasonable and nondiscriminatory modifications thereof and
additions thereto from time to time put into effect by Xxxxxxxx.
Landlord shall not be responsible to Tenant for the violation or
non-performance by any other tenant or occupant of the building or
Project of said tenant or occupant's lease or of any of said Rules and
Regulations.
X. XXXXXXXX'S SUCCESSORS. In the event of a sale or conveyance by
Landlord of the Project, the same shall operate to release Landlord
from any liability under this Lease, and in such event Landlord's
successor in interest shall be solely responsible for all obligations
of Landlord under this Lease.
I. INTERPRETATION. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the premises are
located. This Lease constitutes the entire agreement between the
parties with respect to the Premises and the Project, except for such
guarantees or modifications as may be executed in writing by the
parties from time to time. When required by the context of this Lease,
the singular shall include the plural, and the masculine shall include
the feminine and/or neuter. "Party" shall mean Landlord or Tenant. If
more than one person or entity constitutes Landlord or Tenant, the
obligations imposed upon that party shall be joint and several. The
enforceability, invalidity or illegality of any provision shall not
render the other provisions unenforceable, invalid or illegal.
16
J. PRIOR UNDERSTANDINGS. Tenant acknowledges that neither Xxxxxxxx nor
anyone representing Landlord has made statements of any kind
whatsoever on which Xxxxxx has relied in entering into this Lease.
Tenant further acknowledges that Tenant has relied solely on its
independent investigation and its own business judgment in entering
into this Lease. Xxxxxxxx and Xxxxxx agree that: this Lease supersedes
all prior and contemporaneous understandings and agreement; the
provisions of this Lease are intended by them as the final expression
of their agreement; this Lease constitutes the complete and exclusive
statement of its terms; and no extrinsic evidence whatsoever may be
introduced in any judicial proceeding involving this Lease. No
provision of this Lease may be amended except by an agreement in
writing signed by the parties hereto or their respective successors in
interest, whether or not such amendment is supported by new
consideration.
K. AUTHORITY. If Tenant is a corporation, each individual executing this
Lease on behalf of said corporation represents and warrants that
he/she is duly authorized to execute and deliver this Lease on behalf
of said corporation. Concurrently with the execution of this Lease,
Tenant shall deliver to Landlord a certified copy of a resolution of
the Board of Directors of said corporation authorizing the execution
of this Lease. If Xxxxxx is a partnership, each individual executing
this Lease on behalf of said partnership represents and warrants that
he/she is duly authorized to execute and deliver this Lease on behalf
of said partnership and that this Lease is binding upon said
partnership in accordance with its terms, and concurrently with
execution of this Lease, Tenant shall deliver to Landlord such
evidence of authorization as Landlord may require. If Tenant is a
marital community, or a member of a marital community, both members of
the marital community shall execute this Lease. Where Tenant is
comprised of more than one person or entity, all covenants, agreements
and obligations of Tenant hereunder shall be the joint and several
covenants, agreements and obligations of each person or entity
comprising
L. CLEAN AIR ACT. Tenant acknowledges that Landlord has not made any
portion of the Premises or the Building accessible for smoking in
compliance with WAC 000-00-00000. If Tenant wishes to make any portion
of the Premises accessible for smoking, Tenant shall make all
improvements necessary to comply with all applicable governmental
rules and regulations. Tenant acknowledges that the indemnity
contained in Section 15 of the Lease includes, but is not limited to
claims based on the presence of tobacco smoke as a result of the
activities of Tenant, its employees, agents, or guests.
30. EARLY OCCUPANCY. Tenant shall be entitled to occupy the Premises for the
purpose of construction of Tenant Improvements. If Tenant so occupies the
Premises prior to the Commencement Date, then (i) all provisions of this
Lease other than payment of Base Monthly Rent and Tenant's Share of
Expenses shall be applicable from and after the date of Tenant's first
occupancy, and (ii) Tenant shall pay Landlord, within fifteen (15) days of
invoice, the cost of utility services used during construction as
reasonably estimated by Landlord. If Xxxxxx commences to do business at or
from the Premises prior to April 6, 2000, then Section 1(g) shall be deemed
amended to establish as the Commencement Date the day on which Tenant
commenced to do business at or from the Premises.
LANDLORD: TEACHERS INSURANCE & ANNUTIY ASSOCIATION OF AMERICA, INC.
By:/s/XXXXX XXXXXXXX
-------------------------
Xxxxx Xxxxxxxx
Its XXXXX X. XXXXXXXX
ASSISTANT SECRETARY
TENANT: TYSA Corporation
By:/s/XXXXX XXX XXXXXXX
-----------------------
Xxxxx Xxx Xxxxxxx
Its PRESIDENT
17
EHIBIT A
(the "Premises")
[ILLUSTRATION CANYON PARK BUSINESS CENTER, BUILDING F, SUITE 105 GOES HERE]
Canyon Park Business Center
Building F, Suite 000
00000 00xx Xxxxxx XX
Xxxxxxx, XX 00000
NOTES:
1. Landlord shall demise warehouse area from office and provide building
standard door in a mutually agreed upon location for access into warehouse.
2. Landlord shall demolish wall to create open warehouse should Tenant
require.
3. Landlord shall ensure all systems are clean and in good working order.
4. Landlord shall provide building standard carpet and paint in said area
should Tenant require. Landlord shall remove wall/door separating open
office areas should Tenant wish.
5. Tenant requirements as related to NoTes 2 and 4 shall be finalized prior to
commencement of Tenant Improvement and shall be done in conjunction with
Occupancy.
EXHIBIT B
"The Project"
LEGAL DESCRIPTION - PHASE I (BUILDINGS A-F)
THAT PORTION OF THE WEST HALF OF SECTION 29 AND OF THE EAST HALF OF SECTION 30,
TOWNSHIP 27 NORTH, RANGE 5 EAST, X.X., SNOHOMISH COUNTY, WASHINGTON, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT ON THE NORTH LINE OF THE AMENDED PLAT OF VILLAGE SQUARE,
ACCORDING TO THE PLAT RECORDED IN VOLUME 42 OF PLATS, PAGE 193 THROUGH 198,
INCLUSIVE, RECORDS OF SAID COUNTY, SAID POINT BEING NORTH 88(degree)47'26" EAST
627.20 FEET FROM THE NORTHWEST CORNER OF SAID PLAT; THENCE NORTH 883.00 FEET
ALONG SAID NORTH LINE TO THE NORTHEAST CORNER OF SAID PLAT; THENCE NORTH
88(degree)47'26 EAST 363.00 FEET ALONG SAID NORTH LINE TO THE NORTHEAST CORNER
OF SAID PLAT; THENCE NORTH 48(degree)29' 12" EAST 547.38 FEET TO A POINT ON A
325.00 FOOT RADIUS CURVE CONCAVE TO THE NORTHEAST, A RADIAL THROUGH SAID POINT
BEARING NORTH 46(degree)29' 12" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AN
ARC DISTANCE OF 196.99 FEET TO A POINT OF REVERSE CURVE WITH A 775.00 FOOT
RADIUS CURVE TO THE LEFT; THENCE NORTHERLY ALONG SAID 775.00 FOOT RADIUS CURVE
AN ARC DISTANCE OF 149.56 FEET TO A POINT OF TANGENCY; THENCE NORTH
19(degree)50'31" WEST 449.04 FEET TO THE POINT OF CURVE OF A 50.00 FOOT RADIUS
CURVE TO THE LEFT; THENCE NORTHWESTERLY AND WESTERLY ALONG SAID CURVE AN ARC
DISTANCE OF 78.54 FEET TO A POINT OF TANGENCY; THENCE SOUTH 70(degree)09'29"
WEST 558.55 FEET; THENCE SOUTH 11(degree)28' 14" EAST 281.80 FEET; THENCE SOUTH
6(degree)46'06" EAST 258.77 FEET; THENCE SOUTH 14(degree)04'41" EAST 278.91
FEET; THENCE SOUTH 17(degree)06'43" WEST 170.08 FEET TO THE POINT OF BEGINNING.
(CONTAINING 673,713 SQ. FT. OR 15.466 ACRES, MORE OR LESS)
Cross hatched area denotes Project.
[ILLUSTRATION OF CANYON PARK BUSINESS CENTER GOES HERE]
EXHIBIT C
WORK LETTER AGREEMENT
This Work Letter Agreement, is entered into in conjunction with that certain
lease dated MARCH 17, 2000, by and between TEACHERS INSURANCE & ANNUITY
ASSOCIATION OF AMERICA. INC. ("Landlord") and TYSA CORPORATION ("Tenant").
RECITALS:
A. Concurrently with the execution of this Work Letter Agreement,
Landlord and Tenant have entered into a lease (the "Lease") covering certain
premises (the "Premises") more particularly described in Exhibit "A" attached to
the Lease.
B. In order to induce Tenant to enter into the Lease (which is hereby
incorporated by reference to the extent that the provisions of this Work Letter
Agreement may apply thereto) and in consideration of the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. TENANT IMPROVEMENTS.
Reference herein to "Tenant Improvements" shall include all work to be
done in the Premises pursuant to the Tenant Improvement Plans described in
Paragraph 2 below, including, but not limited to, partitioning, doors, ceilings,
floor coverings, wall finishes (including paint and wallcovering), electrical
(including lighting, switching, telephones, outlets, etc.), plumbing, heating,
ventilating and air conditioning, fire protection, cabinets and other millwork.
2. TENANT IMPROVEMENT PLANS.
Landlord and Tenant have agreed that they will work on a mutually
acceptable space plan which is understood to consist of new building standard
carpet and paint throughout the office area and minor alterations of existing
build-out. Landlord and Tenant shall cooperate in the completion of the
construction drawings implementing those plans. The final working drawings and
specifications may be referred to herein as the "Tenant Improvement Plans." The
Tenant Improvement Plans must be consistent with the general quality and
appearance of tenant improvements in the Building existing in other spaces on
the date of full execution of this Lease. Landlord shall bid the mutually
approved Tenant Improvement Plan and select the General Contractor based on
those bids.
3. BID AWARD.
No further changes to the Tenant Improvement Plans may be made without
the prior written approval from both Landlord and Tenant, and then only after
agreement by Tenant to pay any excess costs resulting from the design and/or
construction of such changes.
4. CONSTRUCTION OF TENANT IMPROVEMENTS.
Landlord shall supervise the completion of the Tenant Improvement Work.
The cost of such work shall be paid as provided in Paragraph 5 hereof. Landlord
shall not be liable for any direct or indirect damages as a result of delays in
construction beyond Landlord's reasonable control, including, but not limited
to, acts of God, inability to secure governmental approvals or permits,
governmental restrictions, strikes, availability of materials or labor or delays
by Tenant (or its architect or anyone performing services on behalf of Tenant).
5. PAYMENT OF COST OF THE TENANT IMPROVEMENTS.
a. Landlord hereby grants to Tenant a "Tenant Allowance" of TWENTY TWO
THOUSAND TWO HUNDRED FIFTY ($22,250.00). Tenant shall be permitted to draw
against the Tenant Improvement Allowance through December 31, 2000 under the
terms of this Work Letter Agreement. Tenant shall not have any rights to unused
Tenant Improvement Allowance that may exist after December 31, 2000.
20
Such Tenant Allowance shall be used only for:
(1) Payment of the cost of preparing the space plan and the final
working drawings and specifications, including mechanical, electrical, plumbing
and structural drawings and of all other aspects of the Tenant Improvement
Plans. The Tenant Allowance will not be used for the payment of extraordinary
design work not included within the scope of Landlord's building standard
improvements or for payments to any other consultants, designers or architects
other than Xxxxxxxx's architect and/or space planner.
(2) The payment of plan check, permit and license fees relating
to construction of the Tenant Improvements.
(3) Construction of the Tenant Improvements, including, without
limitation, the following:
(a) Installation within the Premises of all partitioning,
doors, floor coverings, ceilings, wall coverings and painting,
millwork and similar items.
(b) All electrical wiring, lighting fixtures, outlets and
switches, and other electrical work to be installed within the
Premises.
(c) The furnishing and installation of all duct work, terminal
boxes, diffusers and accessories required for the completion
of the heating, ventilation and air conditioning systems
within the Premises, I including the cost of meter and key
control for after-hour air conditioning.
(d) Any additional Tenant requirements including, but not
limited to, odor control, special heating, ventilation and air
conditioning, noise or vibration control or other special
systems.
(e) All fire and life safely control systems such as fire
walls, sprinklers, halon, fire alarms, including piping,
wiring and accessories installed within the Premises.
(f) All plumbing, fixtures, pipes and accessories to be
installed within the Premises.
(g) Testing and inspection costs.
(h) Contractor's fees, including but not limited to any fees
based on general conditions.
(4) All other costs to be expended by Landlord in the construction
of the Tenant Improvements, including those costs incurred by Landlord
for construction of elements of the Tenant Improvements in the
Premises.
b. The cost of each item shall be charged against the Tenant
Allowance. Landlord shall pay the first of TWENTY TWO THOUSAND TWO
HUNDRED FIFTY ($22,250.00) invoiced from contractor. Tenant shall pay
all invoices thereafter in accordance with the invoice/payment schedule
set forth in the contract.
c. In the event that Tenant shall require any changes or
substitutions to the Tenant Improvement Plans, any additional costs
thereof shall be paid by Tenant to Landlord within fifteen (15) days
after invoice therefor. Landlord shall have the right to decline
Xxxxxx's request for a change to the Tenant Improvement Plans if such
changes would, in Landlord's opinion, unreasonably delay construction
of the Tenant Improvements.
6. ADDITIONAL WORK
Landlord shall provide Tenant with an additional allowance of $500
toward building standard signage subject to Landlord's consent and
applicable City of Bothell codes.
At Landlord's expense Landlord shall perform improvements as shown on
plan in Exhibit A.
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the
date first above written.
21
LANDLORD: TENANT:
Teachers Insurance & Annuity TYSA Corportion
Association of America, Inc.
By:/s/XXXXX X. XXXXXXXX By:/s/XXXXX XXX XXXXXXX
------------------------- -----------------------
Xxxxx X. Xxxxxxxx Xxxxx Xxx Xxxxxxx
Its: Assistant Secretary Its: President
22
EXHIBIT D
(Rules and Regulations)
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement,
name or notice shall be installed or displayed on any part of the
outside or inside of the building or Project without the prior written
consent of Landlord. Landlord shall have the right to remove, at
Tenant's expense and without notice, any sign installed or displayed in
violation of this rule. All approved signs or lettering on doors and
walls shall be printed, painted, affixed or inscribed at the expense of
Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens
or hanging plants or other similar objects attached to or used in
connection with any window or door of the Premises, or placed on any
windowsill, which is visible from the exterior of the Premises, Tenant
shall immediately discontinue such use. Tenant shall not place anything
against or near glass partitions or doors or windows which may appear
unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators or stairways of the Project. The
halls, passages, exits, entrances, shopping malls, elevators,
escalators and stairways are not open to the general public, but are
open, subject to reasonable regulations, to Tenant's business invitees.
Landlord shall in all cases retain the right to control and prevent
access thereto of all persons whose presence in the judgment of
Landlord would be prejudicial to the safety, character, reputation and
interest of the Project and its tenants; provided that nothing herein
contained shall be construed to prevent such access to persons with
whom any tenant normally deals in the ordinary course of its business,
unless such persons axe engaged in illegal or unlawful activities. No
tenant and no employee or invitee of any tenant shall go upon the
roof(s) of the Project.
4. The directory of the building or Project will be provided exclusively
for the display of the name and location of tenants only and Landlord
reserves the right to exclude any other names therefrom.
5. Landlord will furnish Tenant, free of charge, with five keys to each
door lock in the Premises. Landlord may make a reasonable charge for
any additional keys. Tenant shall not make or have made additional
keys, and Tenant shall not alter any lock or install a new additional
lock or bolt on any door of its Premises. Tenant, upon the termination
of its tenancy, shall deliver to Landlord the keys of all doors which
have been furnished to Tenant, and in the event of loss of any keys so
furnished, shall pay Landlord therefor.
6. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's
instructions in their installation.
7. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry
and which is allowed by law. Landlord shall have the right to prescribe
the weight, size and position of all equipment, materials, furniture or
other property brought into the building. Heavy objects shall, if
considered necessary by Landlord, stand on such platforms as determined
by Landlord to be necessary to properly distribute the weight, which
platforms shall be provided at Tenant's expense. Business machines and
mechanical equipment belonging to Tenant, which cause noise or
vibration that may be transmitted to the structure of the building or
to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the building, shall be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or
other devices sufficient to eliminate noise or vibration. The persons
employed to move such equipment in or out of the building must be
acceptable to Landlord. Landlord will not be responsible for loss of,
or damage to, any such equipment or other property from any cause, and
all damage done to the building by maintaining or moving such equipment
or other property shall be repaired at the expense of Tenant.
8. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office
equipment. Tenant shall not use or permit to be used in the Premises
any foul or noxious gas or substance, or permit or allow the Premises
to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the building by reason of noise, odors
or vibrations, nor shall Tenant bring into or keep in or about the
Premises any birds or animals.
9. Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord.
10. Tenant shall not waste electricity, water or air conditionaing and
agrees to cooperate fully with Landlord to assure the most effective
operation of the building's heating and air conditioning and to comply
with any governmental engery-saving rules, laws or regulations of which
Tenant has actual notice, and shall refrain from attempting to adjust
controls. Tenant shall keep corridor doors closed, and shall close
window coverings at the end of each business day.
23
11. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the
building.
12. Landlord reserves the right to exclude from the building between the
hours of 6 p.m. and 7 a.m. the following day, or such other hours as
may be established from time to time by landlord, and on Sundays and
legal holidays, any person unless that person is known to the person or
employee in charge of the building and has a pass or is properly
identified. Tenant shall be responsible for all persons for whom it
requests passes and shall be liable to Landlord for all acts of such
persons. Landlord shall not be liable for damages for any error with
regard to the admission to or exclusion from the building of any
person. Landlord reserves the right to prevent access to the building
in case of invasion, mob, riot, public excitement or other commotion by
closing the doors or by other appropriate action.
13. Tenant shall close and lock the doors of its Premises and entirely
shut off all water faucets or other water apparatus, and electricity,
gas or air outlets before tenant and its employees leave the Premises.
Tenant shall be responsible for any damage or injuries sustained by
other tenants or occupants of the building or by Landlord for
noncompliance with this rule.
14. Overnight parking is prohibited and any vehicle violating this or any
other vehicle regulation adopted by Landlord is subject to removal at
the owner's expense.
15. Tenant shall not obtain for use on the Premises ices, drinking water,
food, beverage, towel or other similar services or accept barbering or
bootblacking service upon the Premises, except at such hours and under
such regulations as may be fixed by Landlord.
16. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be
thrown therein. The expense of any breakage stoppage or damage
resulting from the violation of this rule shall be borne by the tenant
who, or whose employees or invitees, shall have caused it.
17. Tenant shall not sell, or permit the sale at retail of newspapers,
magazines, periodicals, theater tickets or any other goods or
merchandise to the general public in or on the Premises. Tenant shall
not make any room-to room solicitation of business from other tenants
in the Project. Tenant shall not use the Premises for any business or
activity other than that specifically provided for in Tenant's Lease.
18. Tenant shall not install any radio or television antenna, loudspeaker
or other devices on the roof(s) or exterior walls of the building or
Project. Tenant shall not interfere with radio or television
broadcasting or reception from or in the Project or elsewhere.
19. Tenant shall not mark, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises or
any part thereof, except in accordance with the provisions of the Lease
pertaining to alterations. Landlord reserves the right to direct
electricians as to where and how telephone and telegraph wires are to
be introduced to the Premises. Tenant shall not cut or bore holes for
wires. Tenant shall not affix any floor covering to the floor of the
Premises in any manner except as approved by Landlord. Tenant shall
repair any damage resulting from noncompliance with this rule.
20. Tenant shall not install, maintain or operate upon the Premises any
vending machines without the written consent of Landlord.
21. Canvassing, soliciting and distribution of handbills or any other
written material, and peddling in the Project are prohibited, and
Tenant shall cooperate to prevent such activities.
22. Landlord reserves the right to exclude or expel from the Project any
person who, in Landlord's judgment, is intoxicated or under the
influence of liquor or drugs or who is in violation of any of the Rules
and Regulations of the Building.
23. Tenant shall store all its trash and garbage within its premises or in
other facilities provided by Landlord, Tenant shall not place in any
trash box or receptacle any material which cannot be disposed of in the
ordinary and customary manner of trash and garbage disposal. All
garbage and refuse disposal shall be made in accordance with directions
issued from time to time by Landlord.
24. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging or for manufacturing of any
kind, nor shall the Premises be used for any improper, immoral or
objectionable purpose. No cooking shall be done or permitted on the
Premises without landlord's consent, except that use by Tenant of
Underwriters' laboratory approved equipment for brewing coffee, tea,
hot chocolate and similar beverages or use of microwave ovens for
employees use shall be permitted, provided that such equipment and use
is in accordance with all applicable, federal, state county and city
laws, codes, ordinances, rules and regulations.
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25. Tenant shall not use in any space or in the public halls of the Project
any hand truck except those equipped with rubber tires and side guards
or such other material-handling equipment as Landlord may approve.
Tenant shall not bring any other vehicles of any kind into the building
or Project.
26. Without the written consent of Landlord, Tenant shall not use the name
of the building or Project in connection with or in promoting or
advertising the business of Tenant except as Xxxxxx's address.
27. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
28. Tenant assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed.
29. Tenant's requirements will be attended to only upon appropriate
application to the Project management office by an authorized
individual. Employees of Landlord shall not perform any work or do
anything outside of their regular duties unless under special
instructions from Landlord, and no employee of Landlord will admit any
person (Tenant or otherwise) to any office without specific
instructions from Landlord.
30. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other tenant, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations
in favor of Tenant or any other tenant, nor prevent Landlord from
thereafter enforcing any such Rules and Regulations against any or all
of the tenants of the Project.
31. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the
terms, covenants, agreements and conditions of the Lease.
32. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for
safety and security, for care and cleanliness of the Project and for
the preservation of good order therein. Xxxxxx agrees to abide by all
such Rules and Regulations hereinabove stated and any additional rules
and regulations which are adopted.
33. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and
guests.
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EXHIBIT E
(Tenant Sign Criteria)
CANYON PARK BUSINESS CENTER
The sign criteria has been established for the purpose of maintaining the
overall appearance of Canyon Park Business Center Buildings. It must comply with
the covenants, conditions and restrictions of Canyon Park Business Center.
Conformation will be strictly enforced. Any sign installed without approval of
the Landlord will be brought into conformity at the expense of the Tenant.
REQUIREMENTS
1. Landlord shall provide the following signage at no cost to Tenant:
a) Xxxxxx's name and suite number on all exterior project directories
and one (1) mailbox.
b) Tenant's suite number on front entry glass.
c) Xxxxxx's name and suite number on rear transom glass where
applicable.
2. Tenant shall be responsible for coordinating the construction,
installation and payment of building mounted company signs. This
signage shall consist of individual 12" or less high dimensional
styrofoam letters in a type style of Helvetica Medium upper and/or
lower case, painted to match building trim as may be changed from time
to time by Landlord. Maximum line length shall not exceed 16 feet.
3. Method of attachment, location, color and size shall be in standard
conformity and shall be approved by Landlord prior to installation.
SPECIFICATIONS
1. The Tenant sign order attached provides the window sign guidelines,
The signs will be located on the window closest to the front door.
2. The style, color and size of the individual company's name shall be
standard and in conformity to the Landlord's approval. Landlord
reserves the right to modify window signage design based on Tenant's
corporate type style and/or format. (See attached sign order).
3. The placement of the sign and method of attachment to the building
will be directed by the Landlord. All wall signage to be placed between
panel joints. Signs shall be placed at same height on each building.
4. No electrical or audible signs will be permitted except those which
presently exist in project or which may be required by the Americans
With Disabilities Act.
5. Except as provided herein, no advertising placards, banners, pennants,
names, insignia trademarks, "sandwich boards" or other descriptive
material shall be affixed or maintained upon the glass, exterior walls,
landscaped areas, street, or parking areas.
DIRECTORY
1. Each Tenant shall be allowed a space on the building directory sign, if
applicable
2. Method of attachment, location, color and size shall be in standard
conformity and shall be solely up to the Landlord's approval.
MEZZANINE TENANTS
1. Each mezzanine Tenant shall be allowed a space on the entry sign
located at the building entrance, if appliable, and signange on their
individual entrance door.
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The following is an example of a standard layout for window identification
graphics for Canyon Park Business Center. NOTE: the example is a flush-left
layout. Your layout may not be flush left depending on the position of your
window.
[ILLUSTRATION OF STANDARD LAYOUT GOES HERE]
IS LOGO CAMERA READY ARTWORK PROVIDED? YES [ ] NO [ ]
IS LOGO TYPE CAMERA READY ARTWORK PROVIDED? YES [ ] NO [ ]
(LOGO SYMBOL IN COLOR, ALL OTHER COPY MUST BE IN WHITE:)
(IF NO ARTWORK PROVIDED, HELVETICA MEDIUM TYPE WILL BE USED:)
REGARDING THE 11" X 36" TENANT I.D. ZONE;
IF THE TENANT'S NAME OR LOGOTYPE WILL FIT ON:
1 LINE, THEN MAXIMUM LETTER HEIGHT ALLOWED IS 8"
2 LINES, THEN MAXIMUM LETTER HEIGHT ALLOWED IS 5"
3 LINES, THEN MAXIMUM LETTER HEIGHT ALLOWED IS 3"
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STATE OF )
-------------------------------------
)ss.
COUNTY OF )
------------------------------------
I certify that I know or have satisfactory evidence that XXXXX XXXXXXXX
is the person who appeared before me, and said person acknowledged that they
signed this instrument, on oath stated that they were authorized to execute the
instrument and acknowledged it as the ASSISTANT SECRETARY of TEACHERS INSURANCE
& ANNUITY ASSOCIATION OF AMERICA. INC. to be the free and voluntary act of such
party for the uses and purposes mentioned in the instrument.
Dated: .
---------------------
--------------------------------
(Signature)
--------------------------------
(Print Name)
Notary Public, in and for the
State of ,
----------------------
residing at My Commission
Expires
-------------------------
STATE OF )
------------------------------------
)ss.
COUNTY OF )
-----------------------------------
I certify that I know or have satisfactory evidence that XXXXX XXX
XXXXXXX is the person who appeared before me, and said person acknowledged that
they signed this instrument, on oath stated that they were authorized to execute
the instrument and acknowledged it as the PRESIDENT of TYSA Corporation to be
the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated: .
---------------------
--------------------------------
(Signature)
--------------------------------
(Print Name)
Notary Public, in and for the
State of ,
----------------------
residing at My Commission
Expires
-------------------------
28
