Exhibit 99.8
1. BASIC LEASE TERMS
a. DATE OF LEASE: 12/23/03
b. TENANT: Community I.Q., a Washington Corporation
Trade Name: d.b.a. Xxxxx.xxx
Address (Leased Premises): 0000 000xx Xxxxxx XX, Xxxxxxx, Xxxxxxxxxx
00000
Building/Unit: M/8440
Address (For Notices): 0000 000xx Xxxxxx XX, Xxxxxxx, Xxxxxxxxxx 00000
c. LANDLORD: TIAA Realty, Inc., a Delaware corporation
Address (For Notices): 0000 000xx Xxxxxx XX, 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 and administrative use
related to providing eBusiness infrastructure to Web and wireless
managements.
e. PREMISES AREA: An agreed 2,953 Rentable Square Feet
f. PROJECT AREA: An agreed 52,082 Rentable Square Feet
g. LEASE TERM: This Lease shall commence on January 1, 2004 or such
earlier or later date as is provided in Section 3 (the "Commencement
Date"), and shall terminate on the last day of the twenty-fourth
(24th) 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 12 $2,953.00
Month 13 - Month 24 $3,076.00
i. PREPAID RENT (for months in addition to first month's rent): $N/A
j. SECURITY DEPOSIT: $3,076.00 NON-REFUNDABLE CLEANING FEE: $308.00
k. BROKER(S): Tenant's Broker Xxxxx Xxxx; GVA Xxxxxx Xxxxxxx; Landlord's
Broker Xxxx XxXxxxxxx; CB Xxxxxxx Xxxxx
l. GUARANTOR(S): N/A
m. EXHIBITS:
Exhibit A - The Premises
Exhibit B - The Project
Exhibit C - Premises Condition and Work Letter Agreement
[if applicable]
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 the building described
in Section 1 (the "Building") and in the project described on Exhibit
B (the "Project"). By entry on the Premises, Tenant asknowleges 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 Works" 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, Xxxxxxxx'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 improvements, 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. LEASE TERM. The Commencement Date listed in Section 1 of this Lease
represents an estimate of the Commencement Date. This Lease shall commence
on the estimated Commencement Date if there is no Landlord's Work required
under this Lease. If Landlord's Work is required under this Lease, then
this Lease shall commence on the estimated Commencement Date if 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 the
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 Tenant'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
Xxxxxx's Share of Expenses, shall become effective on the earlier of the
Commencement Date or the date that Tenant or its officers, agents,
employees or contractors is first present on the Premises for inspection,
construction or move in purposes.
4. RENT
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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 damaged 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.
For purposes in Section 467 of the Internal Revenue Code, the parties to
this Lease hereby agree to allocate the state 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 one hundred percent (100%), 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 one hundred percent (100%) occupied
during such year. Xxxxxx's Share of Expenses and all other amounts owed by
Tenant to Landlord under this Lease may be referred to in this lease as
"Additional Rent."
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.
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(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 respect 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 services, such as police protection, fire
protection, street sidewalk and 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 for 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 received reimbursement from insurance of 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. The estimated Tenant's
Share of Expenses for calendar year 2004 is One Thousand Eleven Dollars
($1,011) per month.
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 Expenses paid by Xxxxxx
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under this Section 4(b)(3) during the preceding calendar year were
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 thirty (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).
C. 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 when due, Tenant shall pay to Landlord an additional sum equal to
ten percent (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 interest 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 $40.00, and 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 Non-Refundable 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 payment of Base
Monthly 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
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compensate Landlord for any damages sustained by the 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 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, manufacture or mixing of anything that might emit any
objectionable odor, noises, vibrations or lights onto such other tenants.
If sound insulation is required to muffle noise produced by Tenant on the
Premises, Tenant at its own cost shall provide all necessary insulation.
Tenant shall not do 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
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"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 Xxxxxxxx'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 operation. With respect to any Hazardous Substances, 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 standard 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
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Xxxxxxxx's lender's attorney's fees and costs) as a result of Tenant's
use, disposal, transportation, generation and/or sale of Hazardous
Substances.
(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 Landlord's attorney's
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 users 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.
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9. SIGNAGE. Tenant shall not place any signs or symbols in the windows or on
the doors of the premises or upon any part of the Building without
Landlord's prior written consent. Any such signs or symbols shall be in
conformity with other signs on the Premises and Building, and all
applicable laws, ordinances and regulations. Tenant shall maintain any such
signs or symbols in good condition at its sole cost and expense. Tenant
shall remove such signs and symbols as its sole cost and expense upon
termination of the Lease Term, and shall repair all damage caused by such
removal. If Tenant fails to remove any sign or symbol and/or repair any
damange caused by its removal, Landlord may have the same removed and/or
repaired at Tenant's expense. In addition to the foregoing requirements,
all signing shall comply with all other rules and regulations adopted from
time to time by Landlord, including without limitation the rules and
regulations relating to signs as contained in 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 delinqency 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.
11. PARKING. Landlord grants to Tenant and Tenant's customers, suppliers,
employees and invitees, a non-exclusive license to use nine (9) unassigned
parking spaces in 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
restroom 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. Unless Landlord elects otherwise,
electricity and gas to the Premises shall be separately metered, and Tenant
shall pay all costs of the same directly to the providing utility.
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,
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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 Xxxxxx'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.
The costs of above-building standard and/or after-hours services shall be
paid directly by Tenant to Landlord or, if so set forth in this Section 12,
to the utility provider. Except for the costs of utilities and services
that Tenant pays directly to a utility provider pursuant to the terms of
this Lease, 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, gas, electric 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.
Landlord shall provide two 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 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,
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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. Furthermore, Xxxxxx
shall surrender the premises with all lighting and ballasts in a good
working condition.
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 elect to require Tenant to remove any
alterations which Tenant may have made to the premises. If Landlord so
elects, Tenant at its sole cost shall restore the Premises to the condition
designated by Landlord in its election, before the last day of the term or
within thirty (30) days after notice of its election is given, whichever is
later. All such restoration and repair work, including without limitation
the patching and spackling walls, shall be performed by a contractor
approved of in advance by Landlord.
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 alteration 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 be 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. 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 claming 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, ommission 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
Landlord'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, as its sole cost and expense, to obtain
business interruption insurance with respect to such potential injury
or loss.
C. 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.
D. 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 or death
or property damage or loss with a combined single limit of not less than
One Million Dollars ($1,000,000) per occurrence and an excess/umbrella
liability insurance policy with minimum limits of not less than Two Million
Dollars ($2,000,000), with such increases in limits as Landlord may from
time to time require consistent with insurance requirements of
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 projects 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, as its own expense, keep and maintain in full force and effect,
what is commonly referred to as "Special Cause of Loss" or "Special"
coverage insurance (excluding earthquake and flood)
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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 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 and noncontributory policy; shall be on an
occurrence basis; (c) name Landlord and Xxxxxxxx's property manager as
additional insured; and (d) shall contain an endorsement requiring at least
thirty (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 thirty (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 wihtin
five (5) 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 waives 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, Building or Project are more
than ten percent (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 thirty (30) days of such
event without compensation to Tenant. If in Landlord's estimation, the
Premises cannot be restored within ninety (90) days following such
destruction, the Landlord shall notify Tenant and Tenant may terminate this
Lease by delivery of notice to Landlord within thirty (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 law 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 the 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 Monthly Rent 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 Monthly Rent 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 assignments 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
19.1 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 to occupy or use all or any part of the
Premises without first obtaining Landlord's consent which Landlord
shall not unreasonably withhold, condition or delay for transferees
meeting Landlord's then existing criteria 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.
19.2 As a condition for granting its consent to any assignment, encumbrance
or sublease, Landlord may require that the assignee or sublessee remit
directly to Landlord on a monthly basis, all moneys due to Tenant by
said assignee or sublessee. As a condition for granting its consent to
any sublease, if the Building is greater than ten percent (10%) vacant
at the time of Tenant's request, Landlord may require that the rent
payable by such sublessee is at Landlord's then current rental rate
for the Premises or comparable premises in the Building, but not less
than the then current
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Rent under this Lease. Also as a condition to Landlord's consent to
any sublease, such sublease shall provide that it is subject and
subordinate to this Lease and to all mortgages; that Landlord may
enforce the provisions of the sublease, including collection of rent;
that in the event of termination of this Lease for any reason,
including without limitation a voluntary surrender by Tenant, or in
the event of any reentry or repossession of the Premises by Landlord,
Landlord may, at its option, either (1) terminate the sublease or (2)
take over all of the right, title and interest of Tenant, as
sublessor, under such sublease, in which case such sublessee shall
attorn to Landlord, but that nevertheless Landlord shall not (1) be
liable for any previous act or omission of Tenant under such sublease,
(2) be subject to any defense or offset previously accrued in favor of
the sublease against Tenant, or (3) be bound by any previous
modification of any sublease made without Xxxxxxxx's written consent,
or by any previous prepayment by sublessee of more than one month's
payment of Base Monthly Rent. No consent to an assignment, encumbrance
or sublease shall constitute a further waiver of the provisions of
this Article 19.
19.3 The joint and several liability of Tenant named herein and any
immediate and remote successor in interest of Tenant (by assignment or
otherwise), and the due performance of the obligations of this Lease
on Tenant's part to be performed or observed, shall not in any way be
discharged, released or impaired by any (a) agreement that modifies
any of the rights or obligations of the parties under this Lease, (b)
stipulation that extends the time within which an obligation under
this Lease is to be performed, (c) waiver of the performance of an
obligations required under this Lease, or (d) failure to enforce any
of the obligations set forth in this Lease.
19.4 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
consist 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. The requirements of this Section 19.4
shall not apply to corporations the stock of which is traded through
an exchange or over the counter.
19.5 All rent or other consideration 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. In lieu of granting consent to any proposed assignment,
subletting or other transfer for which Tenant is required to obtain
Landlord's consent, Landlord reserves the right to terminate this
Lease or, in the case of subletting of less than all the Premises, to
terminate this Lease with respect to such portion of the Premises, as
of the proposed effective date of such assignment, subletting or other
transfer, in which event Landlord may enter into the relationship of
landlord and tenant with such proposed transferee. Notwithstanding the
foregoing, Xxxxxxxx's recapture right pursuant to the foregoing
sentence shall not apply to a sublease if (a) the term of the sublease
ends at least 1 year prior to the end of the term of the Lease and
contains no extension rights, and (b) the total rentable area
subleased, including the sublease at issue, will be less than 80% of
the Premises. If Tenant request Landlord to consent to a proposed
assignment or subletting, Tenant shall pay to Landlord, whether or not
consent is ultimately given, One Hundred Dollars ($100) or Landlord's
reasonable attorney's fees incurred in connection with such request,
whichever is greater.
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19.6 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 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 assignment 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, Additional Rent or other charge when
due; (b) abandonment or vacation of the Premises (failure to occupy and
operate the Premises for ten (10) 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 IN CASE OF EVENT OF DEFAULT. Landlord may exercise some
or all of 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.
a. In the event of a default by Xxxxxx, in addition to any other remedies
available to Landlord at law or in equity, Landlord shall have the
immediate option to terminate this Lease and all rights of Tenant
hereunder. In the event that Landlord shall elect to so terminate this
Lease the Landlord may recover from Tenant:
(i) The worth at the time of award of any unpaid Rent which had been
earned at the time of such terminations; plus
(ii) The worth at the time of award of the amount by which the unpaid
Rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by which the unpaid
Rent for the balance of the Lease Term after the time of award
exceeds the amount of such rental loss that Tenant proves could
be reasonably avoided; plus
(iv) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Xxxxxx's failure to perform
Tenant's obligations under this Lease or which in the ordinary
course of things would be likely to result therefrom.
As used in Subsections 21(a)(i) and (ii) above, the "worth at the time of
award" is computed by allowing interest at the prime rate established from
time to time by Bank of America, Main Office, Seattle, Washington, plus two
percent (2%). Assignment used in Subsection 21(A)(iii) above, the "worth at
the time of award" is computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of award plus
one percent (1%).
b. In the event of any default by Xxxxxx, Landlord shall also have the
right, with or without terminating this Lease, to re-enter the
Premises and remove all persons and property from the Premises; such
property may be removed and stored in a public warehouse or elsewhere
at the cost of, for the account of and at the risk of Tenant. No
re-entry or taking possession of the Premises by Landlord pursuant to
this
16
Section 21(b) shall be construed as an election to terminate this
Lease unless a written notice of such intention is given to Tenant or
unless the termination thereof is decreed by a court of competent
jurisdiction. Landlord shall have no liability to Tenant for, and
Tenant hereby releases Landlord from, any direct, indirect or
consequential damages that Tenant may suffer as a result of Landlord
exercising its rights hereunder to re-enter the Premises, remove all
persons and property from the Premises and store such property.
c. In the event of the vacation or abandonment of the Premises by Tenant
or in the event that Landlord shall elect to re-enter as provided
above or shall take possession of the Premises pursuant to legal
proceeding or pursuant to any notice provided by law, then if Landlord
does not elect to terminate this Lease provided above, Landlord may
from time to time, without terminating this Lease, either recover all
Rent as it becomes due or relet the Premises or any part thereof for
the Lease Term on terms and conditions as Landlord in its sole
discretion may deem advisable with the right to make alterations and
repairs to the Premises.
In the event that Landlord shall elect to so relet, then rentals
received by Landlord from such reletting shall be applied: first, to
the payment of any indebtedness other than Rent due hereunder from
Tenant to Landlord; second, to the payment of any cost of such
reletting; third, to the payment of the cost of any alterations and
repairs to the Premises, fourth, to the payment of Rent due and unpaid
hereunder and the residue, if any, shall be held by Landlord and
applied to payment of future Rent as the same may become due and
payable hereunder. Should that portion of such rentals received from
such reletting during any month, which is applied to the payment of
Rent hereunder, be less than the Rent payable during that month by
Tenant hereunder, then Tenant shall pay such deficiency to Landlord
immediately upon demand therefore by Landlord. Such deficiency shall
be calculated and paid monthly. Tenant shall also pay to Landlord, as
soon as ascertained, any costs and expenses incurred, including but
not limited to brokers' commissions, by Landlord in such reletting or
in making such alterations and repairs not covered by the rentals
received from such reletting.
d. In the event of a default by Xxxxxx, without any limitation, Landlord
may also (i) bring suit against Tenant for specific performance to
require Tenant to remain in the Premises and perform its Lease
obligations, and/or (ii) perform, on behalf of Tenant, any obligation
of Tenant under this Lease that Xxxxxx has failed to perform and of
which Landlord has given Tenant notice as set forth above, the cost of
which performance shall be immediately paid by Tenant to Landlord as
Additional Rent hereunder. All rights, options and remedies of
Landlord contained in this Lease shall be construed and held to be
cumulative, and no one of them shall be exclusive of the other, and
Landlord shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law,
whether or not stated in this Lease.
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 ninety (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 reserved in this Section 22. Landlord shall conduct
17
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.
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 ten (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 ten (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 One Hundred Dollars ($100) per day for
each day of delay in providing the statement by Tenant after the ten
(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
18
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 ACKNOWLEDGES AND AGREES THAT, WHERE TENANT HAS RECEIVED
A NOTICE TO CURE DEFAULT (WHETHER RENT OR NON-RENT), NO ACCEPTANCE BY
LANDLORD OR 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 one hundred fifty (150%) of Base Monthly
Rent for the last full calendar month during the regular term plus one
hundred percent (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.
19
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 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) 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.
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 attorney's
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.
20
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.
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 in 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
martial community, or a member of a martial 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, agreement and obligations of each person or entity
comprising Tenant.
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. Xxxxxx acknowledges that the indemnity
contained in Section 15 of the Lease includes, but is not limited to
claims
21
based on the presence of tobacco smoke as a result of the activities
of Tenant, its employees, agents, or guests.
M. FINANCIAL STATEMENTS. At any time during the Term of this Lease,
Tenant shall upon ten (10) days prior written notice from Landlord,
provide Landlord with a current financial statement and financial
statement of the two (2) years prior to the current financial
statement year. Such statement shall be prepared in accordance with
generally accepted accounting principles and, if such is the normal
practice of Tenant, shall be audited by an independent certified
public accountant.
30. OPTION TO RENEW. Tenant is granted the right to extend the term of this
Lease beyond the Expiration Date of the initial Lease Term for one (1)
successive period of twenty-four (24) months (the "Extended Term"), by providing
Landlord with no later than nine (9) months and no earlier than twelve (12)
months prior written notice. If Tenant has defaulted in its obligations under
this Lease, and failed to cure such defaults within any applicable cure period,
then Tenant's right to extend the Lease for the Extended Term shall
automatically terminate. Tenant's right to extend the Lease for the Extended
Term is personal to Tenant and may not be exercised by any subtenant or assignee
of Tenant. Tenant's extension right shall apply to all of the Property under
lease to Tenant at the time. During the Extended Term, all of the terms,
covenants, and conditions of the Lease shall continue in full force and effect
as written, except that Section 30 shall be deleted in its entirely and Base
Monthly Rent for the Extended Term shall be at the rate for new leases for
similarly improved and situated premises in the Project but not less than the
last month of the current Lease Term.
31. EXPANSION. In the event that Tenant desires to lease additional space within
the Project, Xxxxxxxx agrees to notify Tenant of spaces within the Project that
Landlord would be willing to lease to Tenant, and use reasonable efforts to
negotiate mutually acceptable terms and conditions (in both parties' sole
discretion) to move the Premises to a larger location, if available.
Landlord: TIAA Realty, Inc., a Delaware corporation
By: Teachers Insurance & Annuity Association
of America, a New York corporation, its
authorized representative.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxx
Its: Assistant Secretary
Tenant: Community I.O., a Washington corporation
By: /s/ Illegible
-----------------------------------------
Its: CEO
22
EXHIBIT A
(The "Premises")
(FLOOR PLAN)
BUILDING M
SUITE 8440
23
EXHIBIT B
(The Project)
Cross hatched area denotes Project.
(LOCATION MAP)
LEGAL DESCRIPTION: (Building M)
Lot 4 of City of Xxxxxxx short plat No. SS-85-11R, recorded under Recording No.
8912190943, said short plat being a revision of short plat recorded under
Recording No. 8512260700, said short plat being a subdivision of the east half
of the southwest quarter of Section 2, township 25 north, range 5 east, X.X., in
the King County, Washington.
Except those portions of said lots conveyed to the City of Xxxxxxx by deed
recorded under Recording No. 8810070396 and 8907120649.
24
EXHIBIT C
(Premises Condition)
BLDG/UNIT: M/8440
QUANTITY AND/OR SIZE
HEIGHT, LENGTH, ETC.
ITEM:
[ ] STANDARD IMPROVEMENTS ONLY
[ ] STANDARD IMPROVEMENTS PLUS THOSE SHOWN BELOW
[X] SPACE TAKEN "AS-IS"
PARTITIONS: NA
CEILINGS: NA
DOORS: NA
FLOOR COVERING: NA
PLUMBING: NA
LIGHTS: NA
SWITCHES: NA
WALL ELECTRICAL OUTLETS: NA
TELEPHONE OUTLETS: NA
AIR CONDITIONING OR VENT FAN: NA
AIR CONDITIONING HOOK UP: NA
WATER HEATER: NA
PAINTING: NA
OTHER: NA
25
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 curtain, 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 are 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 to 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 her building by maintaining or moving such equipment or
other property shall be repaired at the expenses 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.
26
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 conditioning 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
energy-saving rules, laws or regulations of which Xxxxxx has actual notice,
and shall refrain from attempting to adjust control. Tenant shall keep
corridor doors closed, and shall close window coverings at the end of each
business day.
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 and 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. Tenant shall not perform or cause to be performed any car maintenance at
the Project including but not limited to car washing, cleaning, oil
changes, etc.
17. 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.
18. Tenants 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 in 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.
19. 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.
20. 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.
21. Tenant shall not install, maintain or operate upon the Premises any vending
machines without the written consent of Landlord.
27
22. 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.
23. 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.
24. 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.
25. 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 or in the
Project without landlord's consent, except the use by Tenant of
Underwriter's 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 country and city laws, codes,
ordinances, rules and regulations.
26. Tenant shall not use in any space or in the public halls of the Project any
hard 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.
27. Without the written consent of Landlord, Tenant shall not use the name of
the building of Project in connection with or in promoting or advertising
the business of Tenant except as Xxxxxx's address.
28. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. Tenant shall be responsible for the observance of all the foregoing rules
by Tenant's employees, agents, clients, customers, invitees and guests.
35. Smoking is not permitted within the building, the premises or within
fifteen (15) feet of an entrance to a building.
28
EXHIBIT E
TENANT SIGN CRITERIA
The following signage criteria have been established for the purpose of allowing
sufficient business identification for businesses locating within WestPark,
Pacific Business & Technical Center and Center Court. The criteria have also
been established for the purpose of maintaining the overall appearance by
providing maximum continuity with the environment and an architectural
integration with the project. The signage guidelines are in accordance with the
Redmond Community Development Code, Section 20c.20.230. No deviation from these
criteria will be permitted without Landlord's and City of Redmond's prior
written approval. Conformity will be strictly enforced. Any sign installed
without approval of the Landlord will be brought into conformance at the expense
of the Tenant.
REQUIREMENTS
I. EXTERIOR SIGNAGE, BUILDINGS 1-10, A-P, AND RCC NORTH & SOUTH
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 transom glass.
c) Xxxxxx's name and suite number on rear transom glass were
applicable.
2. Method of attachment, location, color and size shall be in standard
conformance as determined by Landlord and shall be approved by
Landlord and City of Xxxxxxx prior to installation.
3. Tenant shall have one (1) exterior sign per leased premises. No
additional exterior signage shall be allowed on the face of the
structure.
4. Tenant shall be responsible for coordinating the construction,
installation, and payment of building-mounted company signs through
Landlord's approved vendor.
5. With the submittal of each set of construction drawings for tenant
improvements, a request for approval to add the tenant's name to the
building shall be made.
6. If no tenant improvements are required, tenant shall submit copy of
exterior signage layout to Landlord for final approval prior to
submitting to City for permit process.
7. No signage is allowed except for Xxxxxx's company name who Xxxxxx
Xxxxxxxx.
A. PACIFIC BUSINESS & TECHNICAL CENTER, BUILDING 1-2
1. The signage shall be located on the facade as designated by the
Landlord. The designated facade will encompass the Tenant's space
per attached approved drawings.
2. The letters for each tenant shall be 12" maximum, dimensional
foam letters. All signs shall be painted a uniform color, either
black or a color to match the building trim color. The letters
will be mounted with adhesive directly to the building surface.
Maximum sign coverage will not exceed 25 square feet. Maximum
overall length not to exceed 12.5 feet. Maximum overall height
not to exceed 24 inches. Tenant signage may contain no more than
two rows of information provided that the total sign area of 25
square feet is not exceeded and the number of rows of information
presents a professional appearance. All signage must be submitted
to Landlord for Landlord's approval.
3. Logos separate from lettering may be allowed and if so allowed
shall not exceed 24 inches by 24 inches, to be included within
the 25 square feet allowed in item
29
Two (2) of this Section. All logos must be submitted to Landlord
for Landlord's approval.
5. All wall signage to be installed between panel joints. All signs
installed at first floor level shall be at same height. All signs
installed at second floor level shall be at same height.
6. Compliance with above criteria shall be effective immediately for
all new Tenants. Current Tenants shall comply no later than
September 30, 1994.
B. PACIFIC BUSINESS & TECHNICAL CENTER BUILDINGS 3 - 10
1. Building-mounted company signage shall consist of individual 9th
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 10 feet. Maximum of two (2) lines or 20 square
feet over tenant's entrance door.
C. WESTPARK, BUILDINGS A - P
In accordance with the previously established and adopted sign program
for WestPark, the following specifications outline more specifically
the nature of the intended signage.
1. Xxxxxx's names will be limited to the upper facade of the
individual tenant space. First-floor-only tenants may locate
signage over main entry doors where possible and with Landlord's
written approval. Tenants on the second floor and 2-story tenants
shall locate signage on the panel designated by Landlord.
2. The letters for each tenant shall be 12" maximum, dimensional
foam letters painted of a color approved by the Landlord. The
letters will be mounted with adhesive directly to the building
surface. Maximum sign coverage will not exceed 25 square feet.
Maximum overall length not to exceed 12.5 feet. Maximum overall
height not to exceed 24 inches. Tenant signage may contain no
more than two rows of information provided that the total sign
area of 25 square feet is not exceeded and the number of rows of
information presents a professional appearance. All signage must
be submitted to Landlord for Landlord's approval.
3. Separate logos may be allowed and shall not exceed 24 inches by
24 inches. Approved logos will be included within the 25 square
feet allowed in item Two (2) of this Section. All logos must be
submitted to Landlord for Landlord's approval.
X. XXXXXXX CENTER COURT, NORTH & SOUTH
1. Tenant's names will be limited to upper facade of the individual
tenant space. Tenants shall locate signage over main entry doors.
2. The letters for tenant signs shall be twenty-inch (20") maximum
in height, dimensional foam letters painted of a color approved
by the Landlord. The letters will be mounted with adhesive
directly to the building surface. Maximum sign coverage shall not
exceed forty square feet. Tenant signage may contain logos and no
more than two rows of information provided that the total sign
area of forty square feet is not exceeded. Logos cannot exceed
24" X 24" in size.
3. All signs must be approved in writing by Xxxxxxxx, including both
"inside" and "outside" signs.
II. OTHER SPECIFICATIONS, BUILDINGS 1-10, A-P, AND RCC N&S
30
A. 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
conformance and shall be solely up to the Landlord's approval.
B. MEZZANINE TENANTS
1. Each mezzanine Tenant shall be allowed a space on the entry sign
located at the building lobby, if applicable, and signage on their
individual entrance door.
C. WINDOWS GRAPHICS
1. The Tenant sign order attached provides the window sign guidelines.
The signs will be located on the window closest to the front door. The
copy color shall be white. Logo style and color to be approved by
Landlord and City of Xxxxxxx.
2. The style, color and size of the individual company's name shall be
standard and in conformance with 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. 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.
4. 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.
The following is an example of a standard layout for window
identification graphics for WestPark and Pacific Business & Technical
Center and WestPark. NOTE: the example is a flush-left layout. Your
layout may not be flush left depending on the position of your window.
________________________________________________________________
| ____ | |
| | | | 36" |
| | CB | | |--------------------| |
| |____| | 8" |
| | |-----| |
| CB XXXXXXX XXXXX | _ _ _ |
| LEASING OFFICE | | | |
| | | | 8" | LOGO
| | |_ _ _| |
| | _ _ _ _ _ _ _ _ _ _ |
| | | | |
| | | | 11" | TENANT NAME
| | | | |
| | |_ _ _ _ _ _ _ _ _ _| |
| | _ _ _ _ _ _ _ _ _ _ |
| (ALL COPY IN WHITE) | | | |
| | | | 2" | SUB COMPANY
| | |_ _ _ _ _ _ _ _ _ _| |
| | |
| | (ALL COPY IN WHITE) |
|________________________________|_______________________________|
(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 TENANTS 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"
----------
31
STATE OF NEW YORK )
)ss.
COUNTY OF NEW YORK )
I certify that I know or have satisfactory evidence that Xxxxx
Xxxxxxxx is the person who appeared before me, and said person acknowledged that
he/she signed this instrument, on oath stated that he/she was authorized to
execute the instrument and acknowledged it as the Assistant Secretary of
Teachers Insurance & Annuity Association to be the free and voluntary act of
such party for the uses and purposes mentioned in the instrument.
Dated: 12.23.03
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
(Signature)
Xxxxxxx X. Xxxxxxx
(Print Name)
Notary Public, in and for the State
of NY, residing at BRONX
My Commission Expires
XXXXXXX X. XXXXXXX
Notary Public, State of N.Y.
No. 01M06001475
Commission Expires 1/12/2006
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxx Xxxx is
the person who appeared before me, and said person acknowledged that he/she
signed this instrument, on oath stated that he/she was authorized to execute the
instrument and acknowledged it as the and ___________ of Community I.O. to be
the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated: 11.26.03
(SEAL) Xxxxxxxx X. Xxxx
----------------------------------------
(Signature)
Xxxxxxxx X. Xxxx
(Print Name)
Notary Public, in and for the State
of Washington, residing at Sammamish
My Commission Expires 12.21.05
32
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE (this "First Amendment") is made this 28 day of
February, 2005, by and between TIAA REALTY, INC., a Delware corporation
("Landlord") and COMMUNITY I.Q., a Washington corporation d.b.a
XXXXX.XXX. ("Tenant").
RECITALS
X. Xxxxxxxx is the landlord and Tenant is the tenant under that certain
Lease dated December 23, 2003 (the "Initial Lease"), for certain office premises
consisting of 2,953 rentable square feet and located at 0000 000xx Xxxxxx XX,
Xxxxxxx, Xxxxxxxxxx 00000, Building M, Unit 8440 (the "Initial Premises"). From
and after the First Amendment Effective Date, the term "Lease" shall mean the
Initial Lease as amended by this First Amendment.
B. The parties desire to amend the Initial Lease to replace the Initial
Premises with certain premises consisting of an agreed 5,431 rentable square
feet and located at 0000 000xx Xxxxxx XX, Xxxxxxx Xxxxxxxxxx 00000, Building P
Unit 8644 (the "Replacement Premises"), all as more fully set forth below.
C. Except as otherwise specifically defined herein all captialized terms
shall have the meanings assigned in the Initial Lease.
AGREEMENT
Now, therefore, for good and valuable consideration, the parties agree as
follows:
1. EXTENDED TERM OF THE LEASE. Section 1(g) of the Initial Lease hereby is
amended to extend the Expiration Date of the Lease to the date that is the last
day of the thirty-sixth (36th) full calender month after the First Amendment
Effective Date (defined below).
2. AS IS; LANDLORD'S WORK. Tenant leases the Replacement Premises in its
as-is, where-is condition and acknowledges that Landlord has not agreed to and
shall not be required to make any improvements or alterations to the same:
provided only that Landlord shall perform the improvements ("Landlord's Work")
to the Replacement Premises as listed on the attached Exhibit C, which is
incorporated herein by reference.
3. FIRST AMENDMENT EFFECTIVE DATE. THE "First Amendment Effective Date"
shall be March 1, 2005 if Landlord's Work in the Replacement Premises (as
described in Exhibit C) is substantially completed (as that term is used in the
construction industry) by such date, but otherwise the First Amendment Effective
Date shall be the date on which Landlord notifies Tenant that Xxxxxxxx's Work is
substantially complete. If the First Amendment Effective Date is later than
March 1, 2005, 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 First Amendment Effective Date by written notice to Tenant. If
Tenant or its agents, employees or contractors enter onto the Replacment
Premises prior to the First Amendment Effective Date, all provisions of the
Lease except for Sections 4, 5, 6 and 7 of this First Amendment and except for
other provisions of the Lease relating to payment of Base Monthly Rent and
Tenant's Share of Operating Expenses with respect to the Replacement Premises
shall be Premises shall be applicable to such entry.
4. VACATION AND SURRENDER OF INITIAL PREMISES. On or before the First
Amendment Effective Date, Tenant shall vacate the Initial Premises, leaving it
in the condition required under the Initial Lease.
5. SUBSTITUTION OF PREMISES. On the First Amendment Effective Date, the
Replacment Premises shall be substituted for the Initial Premises, and from and
after such date, the "Premises" under the Lease shall be deemed to refer to the
Replacment Premises and the "Project" under the Lease shall be described in
Exhibit B and shall consist of an agreed 62,538 rentable square feet. Landlord
shall recalculate Xxxxxx's Share to reflect the same.
6. BASE MONTHLY RENT. From and after the First Amendment Effective Date,
the Base Monthly Rent for the Premises shall be as follows:
First Amendment Commencement
Date - Month 12 $5,648.00 per month
Month 13 - Month 24 $5,974.00 per month
Month 25 - Month 36 $6,246.00 per month
7. SECURITY DEPOSIT.
7.1 On the First Amendment Effective Date, Section 1(j) of the Initial
Lease shall be deemed amended to provide as follows: "Security Deposit:
$8,038,00: NON-REFUNDABLE CLEANING FEE $300.00." Tenant shall pay these amounts
to Landlord prior to the First Amendment Effective Date.
7.2 Provided that the Initial Premises is returned to Landlord in a
good and clean condition, and otherwise in the condition required by the Lease
as if the same had expired by its terms with respect to the Initial Premises.
Landlord shall refund all or the applicable portion of the $3,076.00 security
deposit paid by Tenant under the Initial Lease within sixty (60) days following
the First Amendment Effective Date.
8. FULL FORCE AND EFFECT. Except as specifically set forth herein, the
Lease is and remains in full force and effect and binding on the parties. Tenant
confirms that Xxxxxxxx is not now and has not in the past been in default under
the Lease, and Tenant has no claims against Landlord for damages or offset of
any type.
9. ENTIRE AGREEMENT. This First Amendment and the Initial Lease constitute
the entire agreement between Landlord and Tenant with respect to the subject
matter of this First Amendment.
Landlord: TIAA Realty, Inc., a Delaware corporation
By: Teachers Insurance & Annuity Association of America
New York corporation its authorized representatives.
By /s/ Xxxxx Xxxxxxxx
---------------------------
Xxxxx Xxxxxxxx
Its Assistant Secretary
Tenant: Community I.Q., a Washington corporation d.b.a Xxxxx.xxx
By: /s/ Xxxx Xxxx
--------------------------
Xxxx Xxxx
Its: CEO
EXHIBIT A
(The Replacement Premises)
(FLOOR PLAN)
SECOND FLOOR PLAN
SUITE P/8644
AVAILABLE OFFICE: 5,431 rsf
AVAILABLE WAREHOUSE: 0 rsf
TOTAL: 5,431 rsf
WESTPARK BUILDING P-SUITE 8644
0000 000xx Xxxxxx XX
Xxxxxxx, Xxxxxxxxxx 00000
(FLOOR PLAN)
EXHIBIT B
(the "Project")
Cross hatched area denotes Project.
(LOCATION MAP)
LEGAL DESCRIPTION: (Building P)
Lot 2 of City of Xxxxxxx short plat number SS-86-5, recorded under Recording No.
8811030191, said short plat being a subdivision of a portion of the South 320
feet to the North 1.006 feet of the Northeast quarter of the Southwest quarter
of Section 2, Township 25 North, Range East. X.X, in Xxxx County, Washington,
Together with an easement for ingress, egress and utilities 30 feet in width,
being a southerly extension of the East 30 feet of said Premises, lying
southerly of the South line of said Premises and northerly of the northerly
margin of N.E. 85th Street.
EXHIBIT C
(PREMISES CONDITION)
BLDG/UNIT: P/8644
QUANTITY AND OR SIZE
HEIGHT, LENGTH, ETC.
ITEM:
_______ STANDARD IMPROVEMENTS ONLY
_______ STANDARD IMPROVEMENTS PLUS THOSE SHOWN BELOW
XX SPACE TAKEN "AS-IS", With the improvements indicated below and as further
shown in the diagram attached on Exhibit C-1
Using building standard material where applicable:
- Landlord shall remove one wall
- Remove and relocate cabinets
- Recarpet area affected by removal of wall and cabinets
- Infill one door
- Paint affected walls by infill of door
EXHIBIT C-1
Diagram showing Xxxxxxxx's Work
SECOND FLOOR PLAN SUITE P/8644
AVAILABLE OFFICE: 5,431 rsf
AVAILABLE WAREHOUSE: 0 rsf
TOTAL: 5,431 rsf
1. Remove wall.
2. Remove cabinets.
3. Relocate cabinets.
4. Re-carpet room.
5. Infill door.
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
I certify that I know or have satisfactory evidence that Xxxxx Xxxxxxxx is
the person who appeared before me, and said person acknowledged that he signed
this instrument, on oath stated that he was 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: 3-4-05
/s/ XXXXXXX X. XXXXXXX
XXXXXXX X. XXXXXXX ----------------------------------------
Notary Public, State of N.Y. (Signature)
No. 01M06001475
Commission Expires 1/12/2006
XXXXXXX X. XXXXXXX
(Print Name)
Notary Public in and for the State
of NY, residing at Bronx
My Commission Expires 1-12-2006
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
I certify that I know or have satisfactory evidence that Xxxx Xxxx is the
person who appeared before me, and said person acknowledged that he/she signed
this instrument, on oath stated that he/she was authorized to execute the
instrument and acknowledged it as the CEO of Community IO dba Xxxxx.xxx to be
the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated: 2/14/2005
(NOTARY STAMP) /s/ Xxxxx X. Xxxxxx
----------------------------------------
(Signature)
Xxxxx X. Xxxxxx
(Print Name)
Notary Public, in and for the State of
Arizona, residing at Scottsdale, AZ.
My Commission Expires 9-14-2007.
