LEASE AGREEMENT
THIS LEASE (this "Lease"), made this 1st day of May, 1998, between
SPOKANE TEACHERS CREDIT UNION ("Landlord"), and SOFTWARE SPECTRUM, INC. a
Texas corporation ("Tenant").
AS PARTIES HERETO, Landlord and Tenant agree as follows:
1. LEASE DATE AND EXHIBITS
The terms used herein shall have the following meanings unless
otherwise specifically modified by provisions of this Lease.
1.1 BUILDING 1
"Building 1" shall mean office building number 1, located at
00000 Xxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx, situated on the real property
("property") more particularly described in EXHIBIT A, as outlined on the site
plan attached hereto as EXHIBIT B-1.
1.2 BUILDING 2
"Building 2" shall mean office building number 2, located at
00000 Xxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx, situated on the Property, and
outlined on the site plan attached hereto as EXHIBIT B-1.
1.3 BUILDINGS
"Buildings" shall mean Building 1 and Building 2, together with
the enclosed passageway that connects Buildings 1 and 2.
1.4 COMPLEX
"Complex" shall mean the Buildings, the Common Area and the
Parking Area.
1.5 CAFETERIA
"Cafeteria" shall mean the cafeteria servicing the Buildings and
located within Building 1, as outlined on the site plan attached hereto as
EXHIBIT B-1.
1.6 PREMISES
"Premises" shall mean approximately 71,160 rentable square feet
in Building 1 and 2, as outlined on the floor plan attached hereto as EXHIBIT
B-2.
1.7 COMMON AREA
"Common Area" shall mean all areas of the Buildings designated
by Landlord as common areas for the use generally of Landlord and other tenants
of the Buildings, including, but not limited to, hallways, the enclosed
passageway between the Buildings and the Cafeteria (but excluding Landlord's
lobby area, as outlined on EXHIBIT B-1, which shall be for Landlord's exclusive
use.)
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1.8 PARKING AREA
"Parking Area" shall mean the unreserved parking spaces in the
parking area adjacent to the Buildings, as such parking area is outlined on the
site plan attached hereto as EXHIBIT B-1.
1.9 TENANT'S PERCENTAGE OF THE COMPLEX
"Tenant's Percentage of the Complex" shall mean sixty one and
two-tenths percent (61.2%), calculated on the basis of a total 71,160 rentable
square feet in the Premises and a total of 116,262 rentable square feet in the
Buildings at the time of the Commencement Date of this Lease. It is understood
and agreed by the parties that Tenant's Percentage of the Complex shall be
verified by actual measurements to be taken by an architect, engineer or similar
professional mutually agreed upon by Landlord and Tenant within sixty (60) days
after the Commencement Date, and recomputed accordingly in the event the total
rentable square feet leased by Tenant increases or decreases, or in the event
the total rentable square feet in the Buildings increases or decreases.
1.10 COMMENCEMENT DATE AND EXPIRATION DATE
"Commencement Date" shall mean May 1, 1998. If Tenant shall
occupy the Premises prior to the Commencement Date first stated herein, then the
Commencement Date shall be the date of such occupancy.
"Expiration Date" shall mean April 30, 2001.
1.11 RENT
"Rent" shall mean Basic Rent and Additional Rent as hereinafter
defined:
1.11.1 BASIC RENT
"Basic Rent" shall mean: Months 1 - 2 $38,844.51 per month NNN
Months 3 - 12 $41,374.39 per month NNN
Months 13 - 24 $47,202.80 per month NNN
Months 25 - 36 $49,066.24 per month NNN
1.11.2 ADDITIONAL RENT
"Additional Rent" shall mean the Actual Costs Allocable
to the Premises (as hereinafter defined) for a Lease Year (as hereinafter
defined), payable in equal monthly installments based on the Estimated Costs
Allocable to the Premises (as hereinafter defined) and using the following
definitions:
(a) "Operating Costs" shall mean all reasonable expenses normally or
customarily paid or incurred by Landlord, and not otherwise reimbursed by any
Tenant, for maintaining, operating and repairing the Complex and the personal
property used in conjunction therewith, including, without limitation, the costs
of:
(i) refuse collection;
(ii) water, sewer and utilities services;
(iii) emergency power backup;
(iv) light replacement service and parts;
(v) supplies;
(vi) janitorial and cleaning services;
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(vii) window washing;
(viii) landscape maintenance;
(ix) maintenance of telephone switching and related equipment;
(x) services of independent contractors;
(xi) premiums for insurance, including, without limitation, policies
of casualty and liability insurance of such types and in such amounts
as Landlord deems necessary or desirable in the exercise of Landlord's
reasonable judgment and which Tenant is named an additional insured
under;
(xii) licenses, permits and inspection fees; and
(xiii) any other reasonable expense or charge, whether or not
hereinabove described, which in accordance with generally accepted
accounting principles would be considered an expense normally incurred
for maintaining, operating or repairing the Complex.
Provided, however, that to the extent Tenant pays directly for any such
expenses with respect to the Premises (for example; electrical service
separately metered to the Premises or custodial services separately contracted
for the Premises), then, "Operating Costs" shall mean the Tenant's prorata share
of the cost of providing such goods or services to the Common Area only.
(b) "Real Property Taxes" shall mean taxes on real property and personal
property, including all Tenant improvements for which Landlord is not otherwise
entitled to reimbursement by any Tenant or other occupant, charges and
assessments levied with respect to the Property, the Buildings, any
improvements, fixtures and equipment used directly in the operation of the
Complex and located in the Buildings or on the Property; and any taxes levied or
assessed in addition to or in lieu of, in whole or in part, such real property
or personal property taxes; and any tax on Landlord's gross receipts unless such
tax cannot be charged to Tenant pursuant to applicable law.
(c) "Lease Year" shall mean the 12 month period commencing on May 1.
(d) "Actual Costs" shall mean the actual expenses paid or incurred by
Landlord for Operating Costs and Real Property Taxes during any Lease Year of
the term hereof.
(e) "Actual Costs Allocable to the Premises", shall mean the Actual Costs
multiplied by Tenant's Percentage of the Complex.
(f) "Estimated Costs Allocable to the Premises" shall mean Landlord's
estimate of Actual Costs allocable to the Premises for the following Lease Year
as reasonably determined by Landlord.
1.12 PERMITTED USES
"Permitted Uses" shall mean use of the Premises by Tenant only
for general office purposes and for no other business or purpose without the
prior written consent of Landlord.
1.13 DEFAULT RATE
"Default Rate" shall mean a rate equal to four percent (4%) per
annum over the prime rate of Bank of America (or its successors), as announced
from time to time.
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1.14 EXHIBITS
The following exhibits are made a part of this Lease:
EXHIBIT A Legal Description
EXHIBIT B-1 Site Plan of Property
EXHIBIT B-2 Floor Plan of Premises
In the event of any inconsistency in the provisions of this Section and more
specific provisions set forth elsewhere in this Lease, the more specific
provision shall control.
2. PREMISES
Landlord does hereby lease the Premises to Tenant, and Tenant does
hereby lease the Premises from Landlord, in their "as is" condition, upon the
terms and conditions herein set forth.
The parties acknowledge that Landlord owns and will continue to occupy
Building 1 and that, accordingly, Landlord and Tenant will share the use of the
Cafeteria and the enclosed passageway between the Buildings. Landlord will also
have rights of access through the Premises, for ingress and egress to and from
the electrical room and the security room in Building 2, as more fully described
in Section 16 below.
3. TERM
The term of this Lease ("Lease Term" shall be a period extending for
36 months commencing on the Commencement Date and expiring on the Expiration
Date, subject to Tenant's renewal options as set forth in Section 4.
4. OPTION TO RENEW
4.1 OPTION
Landlord grants Tenant the option to extend the Lease Term for
one (1) renewal term of three years commencing immediately upon the Expiration
Date (each, a "Renewal Term"). This option to renew is expressly conditioned on
Tenant's being, on both the date Tenant exercises its option and the first day
of the applicable Renewal Term, in full and faithful compliance in all material
respects with each and every one of its obligations contained in this Lease.
4.2 EXERCISE OF OPTION; LANDLORD'S RIGHT TO CANCEL EXERCISE
To exercise its option, Tenant must give written notice
("Renewal Notice") thereof to Landlord at least one hundred twenty (120) days
prior to the first day of the applicable Renewal Term. Landlord is under no
obligation to notify Tenant of this deadline. Tenant understands and agrees that
time is of the essence and unless so exercised by the deadline specified above,
the renewal options herein granted will terminate.
4.3 RENEWAL TERMS
During the applicable Renewal Term, each and every provision of
this Lease will remain unchanged and in full force and effect except that the
Basic Rent will be adjusted as of the first day of the applicable Renewal Term
to the then fair market rental rate as of such date (the "Market Rate"). The
"Market Rate" for the Premises will be specified by Landlord, acting in good
faith, and will be the then
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current base rental rate being offered by Landlords owning similar office space
in the vicinity of the Property, adjusted to reflect the location of the
Premises in the Building and the desirability of the Premises versus the
location and desirability of such other space, if materially different.
4.4 DETERMINATION OF MARKET RATE
Landlord will notify Tenant in writing of the Market Rate at
least sixty (60) days prior to the first day of the applicable Renewal Term. If
Tenant disagrees with the Market Rate specified by Landlord, it will so notify
Landlord immediately and they will meet a soon as possible thereafter in a good
faith effort to resolve theft disagreement.
If the parties are still in disagreement forty five (45) days
prior to the first day of the applicable Renewal Term, the Market Rate will be
determined by a panel of three arbitrators, one to be selected by Landlord
within thirty (30) days before the first day of the applicable Renewal Term (or
by the Tenant if Landlord fails to appoint an arbitrator within the time
provided above), one to be selected by Tenant (or by Landlord if Tenant fails to
do so within five (5) days after demand from Landlord), and one to be selected
by the first two arbitrators. Each such arbitrator will be an independent MAI
appraiser with at least ten (10) years' experience in appraising commercial real
estate in the vicinity of the Property. The cost of the arbitrator selected by
Tenant will be borne by Tenant, the cost of the arbitrator selected by Landlord
shall be borne by Landlord, and the cost of the third arbitrator will be shared
equally by Tenant and Landlord. The arbitrators will meet within five (5) days
of their appointment and will render a decision within ten (10) days thereafter.
The Market Rate determined by the arbitrators will be binding upon both parties.
Until the Market Rate is determined as provided herein, Tenant
will pay Basic Rent based on the Market Rate specified by Landlord, and if the
Market Rate if subsequently determined to be different from the Market Rate
specified by Landlord, Landlord or Tenant, as the case may be, will reimburse
the other for such difference within twenty (20) days of the date of final
determination of the Market Rate.
5. PAYMENT OF BASIC RENT
Commencing on the Commencement Date, Tenant shall pay Landlord Basic
Rent in lawful money of the United States in advance on or before the first day
of each month without offset or deduction at the offices of Landlord, at 000
Xxxx Xxxx Xxxxxx, P. O. Xxx 0000, Xxxxxxx, Xxxxxxxxxx 00000-0000, or such other
place as may be designated by Landlord. Basic Rent for any period during the
Lease Term which is less than one month shall be a pro rata portion of the
monthly installment
6. PAYMENT OF ADDITIONAL RENT
Commencing on the Commencement Date, Tenant shall pay Landlord as
Additional Rent 1/12 (8.33%) of the Estimated Costs Allocable to the Premises in
lawful money of the United States in advance on or before the first day of each
month, without deduction or offset, at the address specified in Section 5. Prior
to the commencement of each Lease Year during the Lease Term, Landlord shall
furnish Tenant a written statement of the Estimated Costs Allocable to the
Premises for such Lease Year, together with the calculation of the estimated
monthly Additional Rent payable during such Lease Year. If at any time or times
during such Lease Year it appears to Landlord that the Actual Costs Allocable to
the Premises will vary from Landlord's estimate by more than five percent (5%)
on an annual basis, Landlord may, by written notice to Tenant, revise Landlord's
estimate for such Lease Year, and subsequent Additional Rent payments by Tenant
for such Lease Year shall be recalculated based on Landlord's revised Estimated
Costs Allocable to the Premises.
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Within ninety (90) days after the close of each Lease Year during the
Lease Term, or as soon thereafter as practicable, but not later than one hundred
twenty (120) days after the close of such Lease Year, Landlord shall deliver to
Tenant a written statement setting forth the Actual Costs Allocable to the
Premises during the preceding Lease Year. If such costs for any Lease Year
exceed Estimated Costs Allocable to the Premises paid by Tenant to Landlord,
Tenant shall pay the amount of such excess to Landlord as Additional Rent within
forty-five (45) days after receipt of such statement by Tenant. If such
statement shows such costs to be less than the amount paid by Tenant to
Landlord, then the amount of such overpayment by Tenant shall be credited by
Landlord to the next immediate Rent payable by Tenant. Tenant shall have the
right, at Tenant's sole expense, to audit Landlord's books regarding Actual
Costs, provided that (i) such right shall not be exercised more than once each
calendar year, and (ii) such right must be exercised, if at all, by delivery of
written notice to Landlord on or before thirty (30) days after Landlord's
delivery of the written statement setting forth Actual Costs Allocable to the
Premises during the preceding Lease Year. If the audit reveals that Landlord's
statement is determined to be in error by more than five percent (5%), the
amount of Additional Rent payable by Tenant attributable to Actual Costs
Allocable to the Premises shall be recalculated based upon the results of any
such audit.
If the Expiration Date is a day other than the last day of a Lease
Year, the amount of any adjustment between Actual Costs and Estimated Costs
Allocable to the Premises with respect to the Lease Year in which such
termination occurs shall be prorated on the basis of a 365-day year. Any amount
payable by Landlord to Tenant or by Tenant to Landlord with respect to such
adjustment shall be payable within forty-five (45) days after delivery by
Landlord to Tenant of the Statement of Actual Costs Allocable to the Premises
with respect to such Lease Year.
7. (intentionally omitted)
8. USES
The Premises shall be used only for Permitted Uses and for no other
purpose without the prior written consent of Landlord. No act shall be done in
or about the Premises that is unlawful or that will increase the existing rate
of insurance on the Buildings. Tenant shall not commit or allow to be committed
any waste upon the Premises, or any public or private nuisance or other act or
thing which disturbs the quiet enjoyment of Landlord of any other Tenant in the
Buildings. Tenant shall not, without the written consent of Landlord, use any
apparatus, machinery or device in or about the Premises which will cause any
substantial noise or vibration or any increases in the normal use of electric
power. If any of Tenant's office machines and equipment should disturb the quiet
enjoyment of Landlord or any other Tenant in the Buildings, then Tenant shall
provide adequate insulation, or take other action as may be necessary to
eliminate the disturbance. Tenant shall comply with all laws relating to
Tenant's use of the Premises and shall observe such reasonable rules and
regulations as may be adopted and published by Landlord for the safety, care and
cleanliness of the Premises or the Buildings, and for the preservation of good
order therein, including but not limited to any rules and regulations and/or
declaration of protective covenants attached to this Lease. Notwithstanding the
foregoing, no rules or regulations hereafter promulgated by Landlord shall
materially diminish Tenant's rights or increase Tenant's obligations under this
Lease.
9. SERVICES AND UTILITIES
9.1 GENERAL
Landlord shall maintain the Common Area in reasonably good order
and condition except for damage occasioned by the act or omission of Tenant, the
repair of which damage shall be paid for by Tenant.
Landlord shall furnish (or cause to be furnished) the Premises
with electricity for lighting and operation of normal power usage office
machines, water, heat and normal air conditioning
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service. Landlord shall also provide light replacement service for
Landlord-furnished light. If the foregoing services are not separately metered
to Tenant, the cost of providing such services shall be reimbursed by Tenant to
Landlord in the form of Additional Rent pursuant to Section 6. Tenant shall, at
Tenant's expense, provide for its own trash disposal and janitorial services
with respect to the Premises.
Landlord shall not be liable for any loss, injury or damage to
property caused by or resulting from any variation, interruption or failure of
such services to be provided by Landlord (including, but not limited to, the
emergency power backup system) due to any cause whatsoever, or from failure to
make any repairs or perform any maintenance. In the event of such variation,
interruption or failure, however, Landlord shall use reasonable diligence to
restore such service. No temporary interruption or failure of such services
incident to the making of repairs, alterations or improvements, or due to
accident or strike, or conditions or events beyond Landlord's reasonable control
shall be deemed an eviction of Tenant or relieve Tenant from any of Tenant's
obligations hereunder. Landlord will use reasonable efforts to notify Tenant at
least forty-eight (48) hours in advance of any scheduled or anticipated
interruption in any such services. Notwithstanding anything to the contrary
contained in this Section 9 or elsewhere in this Lease, if any such slowdown,
interruption or stoppage of any such services, or the Landlord's inability to
perform any covenant herein creates a condition which interferes substantially
with Tenant's normal use of the Premises as allowed under this Lease, and as a
consequence Tenant is compelled to discontinue or materially curtail business in
the Premises in whole or in part for a period of twenty (20) consecutive days,
then the Basic Rent and Additional Rent shall be proportionately abated during
the time of such discontinuance or curtailment of business, but no such
abatement shall continue beyond the time that the slowdown, interruption,
stoppage or inability to perform no longer persists, regardless of any delay by
Tenant in resuming operation of business after that time. If any such slowdown,
interruption, stoppage or inability to perform continues for a period of
forty-five (45) consecutive days and Tenant is compelled (whether for prudent
business reasons or otherwise) to discontinue business in the Premises, Tenant
shall have the right thereafter to terminate this Lease upon notice to Landlord;
however, such termination right shall not continue beyond the time that the
slowdown, interruption, stoppage or inability to perform no longer persists.
Before installing any equipment (other than customary and normal
office equipment) in the Premises that generates more than a minimum amount of
heat, Tenant shall obtain the written permission of Landlord and Landlord may
refuse to grant such permission if the amount of heat generated would place an
above average burden on the air-conditioning system of the Buildings unless
Tenant shall agree to pay at Landlord's election: (a) the costs of Landlord for
installation, operation and maintenance of supplementary air-conditioning units
as necessitated by such equipment, or (b) an amount reasonably determined by
Landlord to cover the additional burden on the existing air-conditioning system
generated by such Tenant equipment
If Tenant uses any equipment in the Premises requiring above
average power usage as compared to other areas of the Complex, Tenant shall in
advance, on the first day of each month during the Least Term, pay Landlord as
Additional Rent the reasonable amount estimated by Landlord as the cost of
furnishing electricity for the operation of such equipment provided, however,
that this provision shall not be applicable if electricity is separately metered
for the Premises. Basic Rent does not include any amount to cover the cost of
furnishing electricity for such purposes unless so state therein.
At Tenant's request, Landlord shall use its best efforts to
cause utilities furnished to Tenant to be separately metered, and Tenant shall
pay for the installation costs of and the conversion to any meters required. To
the extent meters cannot be installed, or the cost of such installation is
excessive, Tenant shall continue to pay for such utilities as part of the
Additional Rent.
9.2 CAFETERIA
Tenant shall be entitled to nonexclusive use (in common with Landlord)
of the Cafeteria servicing the Building. Operating Costs relating to the
Cafeteria will not include subsidies paid
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by Landlord for any food service operations, but will include all other costs
and expenses with respect to the Cafeteria. Tenant agrees to cause its
employees, agents and invitees to comply with all reasonable rules and
regulations as may be adopted and published by Landlord from time to time for
the safety, care and cleanliness of the Cafeteria and for the preservation of
good order therein.
10. PARKING AND ACCESS
The Parking Area shall be used for vehicle parking only and shall be
used for no other purposes except as required for trash disposal (including
exterior storage) without the prior written consent of Landlord. The Parking
Area shall be available to Tenant and its invitees on a first come, first serve
basis, and Tenant shall ensure that all parking spaces designated as "Visitor
Parking" in the Parking Area are kept available for visitors of Landlord and
Tenant, also on a first come, first serve basis. Tenant agrees that Tenant will
not park, nor will Tenant permit Tenant's employees, agents, guests, invitees
and/or licensees to park, on streets within the Property or in any other spaces,
lots or areas within the Property except as may be specifically provided for in
this Lease.
Trucks or other vehicles may only temporarily park at bays serving the
Premises while loading and unloading, and shall not be stored in the parking,
maneuvering or loading areas. Tenant, Tenant's employees, agents, guests,
invitees and licensees shall use all due care and reasonable best efforts not to
interfere with Landlord's and other tenants' use of parking and maneuvering
areas.
11. TAX ON RENT
If any governmental authority shall in any manner levy a tax on rent
payable under this Lease or rentals accruing from use of property, or such tax
in any form against Landlord measured by income derived from the leasing or
rental of the Complex, such tax shall be paid by Tenant either directly or
through Landlord; provided, however, that Tenant shall not be liable to pay any
federal or state income tax imposed on Landlord.
12. PERSONAL PROPERTY TAXES
Tenant shall pay prior to delinquency all personal property taxes
payable with respect to all property of Tenant located on the Premises or in
Building 2 and shall promptly provide written proof of such payment upon request
of Landlord.
13. IMPROVEMENTS
Prior to the Commencement Date, Landlord shall, at its own expense,
construct demising walls, as outlined on EXHIBIT B-2 attached hereto. Landlord
will submit its plans and specifications for such walls to Tenant for Tenant's
review and approval, which approval will not be unreasonably withheld or
delayed. Tenant shall be solely responsible for all furnishings required for its
entry.
All standard or special Tenant improvements which are affixed to the
Premises, including but not limited to, any paid for by Landlord, shall at all
times be the property of Landlord. Notwithstanding anything in this Lease to the
contrary, however, Tenant improvements such as telephone and computer equipment
(except for lines and internal Building wiring) and modular walls and
partitions, whether or not affixed to the Premises, will remain the property of
Tenant. Upon the Expiration Date or sooner termination of the Lease Term, all
improvements and additions to the Premises made by Tenant shall become the
property of Landlord, except Tenant may remove Tenant's trade fixtures, office
supplies and movable office furniture and equipment not attached to Building 2
provided: (a) such removal is made prior to the Expiration Date or sooner
termination of the Lease Term, (b) no Event of Default (as defined in Section 24
of this Lease) exists at the time of such removal, and (c) Tenant immediately
repairs all damage caused by or resulting from such removal. All other property
in the Premises and any alterations or
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additions thereto (including, without limitation, wall-to-wall carpeting,
paneling, wall covering or lighting fixtures and apparatus) and any other
article affixed to the floor, wall or ceiling of the Premises shall become the
property of Landlord and shall remain upon and be surrendered with the Premises,
Tenant hereby waiving all rights to any payment or compensation therefor. If,
however, Landlord so requests in writing, Tenant will, prior to the Expiration
Date or sooner termination of the Lease Term, remove such alterations,
additions, fixtures, equipment and property placed or installed by Tenant in the
Premises as requested by Landlord, and will immediately repair any damage caused
by or resulting from such removal to the condition of the Premises prevailing
upon the Commencement Date, reasonable wear and tear excepted.
If Tenant shall fail to remove any of Tenant's property of any nature
whatsoever from the Premises on the Expiration Date, sooner termination of the
Lease Term or when Landlord has the right of re-entry, Landlord may, at
Landlord's option, remove and store said property without liability for loss
thereof or damage thereto, such storage to be for the account and at the expense
of Tenant. If Tenant shall not pay the cost of storing any such property after
it has been stored for a period of thirty (30) days or more, Landlord may, at
Landlord's option, sell, or permit to be sold, any or all of such property at
public or private sale (and Landlord may become a purchaser at such sale), in
such manner and at such times and places as Landlord in Landlord's sole
discretion may deem proper, without notice to Tenant, and shall apply the
proceeds of such sale; first, to the cost and expenses of such sale, including
reasonable attorneys fees actually incurred; second, to the payment of the costs
or charges for storing any such property; third, to the payment of any other
sums of money which may then be or thereafter become due Landlord from Tenant
under any of the terms hereof; and, fourth, the balance, if any, to Tenant
14. ALTERATIONS AND CARE OF PREMISES
Tenant shall take good care of the Premises (and all telephone lines,
equipment, fixtures and mechanical systems therein) and shall promptly make all
necessary repairs and maintenance, except those to be made by Landlord as
provided herein, in order to keep the Premises in neat, clean and sanitary
condition. Tenant shall maintain all signs approved by Landlord in good, clean
and attractive condition.
Landlord will be responsible only for structural repairs or
replacement of or to the roof, foundations, sub-floor and structural walls of
the Buildings, HVAC, mechanical, electrical and life safety systems in the
Complex (including the Premises), normal wear and tear excepted. Nothing herein
will limit Tenant's obligation to pay its share of Operating Costs with respect
to the maintenance and operation of the HVAC, mechanical, electrical and life
safety systems in the Complex.
Tenant shall, at the expiration or sooner termination of this Lease,
surrender and deliver the Premises to Landlord in as good condition and in the
same layout and configuration as when received by Tenant from Landlord or as
thereafter improved with Landlord's consent, reasonable wear and tear and damage
by fire or other insured casualty excepted.
Tenant shall not make any material alterations, additions or
improvements in or to the Premises, or add, disturb or change in any material
way any floor covering, all covering, window blinds, fixtures, plumbing or
wiring without first obtaining the written consent of Landlord, which consent
will not be unreasonably withheld or delayed. Tenant shall deliver to
Landlord full and complete plans and specifications prepared by a licensed
architect for any such material alteration, addition or improvement along
with keys to any locks changed by Tenant provided that Tenant shall not be
required to retain an architect in connection with the installation of
telephone, computer and security equipment contemplated hereby. In addition,
notwithstanding the above, Tenant shall have the right to make nonstructural
alterations which do not exceed Ten Thousand Dollars ($10,000) in any one
instances, and minor decorations to the Premises, without obtaining
Landlord's written consent, but Tenant shall deliver to Landlord copies of
all plans and drawings relating to any such nonstructural alterations.
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Landlord shall have the right to approve the contractor to be hired by
Tenant to construct any structural alteration, and such contractor shall be
fully licensed and bonded and insured.
Landlord does not and will not make any covenant or warranty, express
or implied, that any such plans or specifications submitted by Tenant are
accurate, complete or in any suited for their intended purpose. Further, Tenant
shall indemnify and hold Landlord harmless from any liability, claim or suit,
including attorneys' fees, arising from any injury, damage, cost or loss
sustained by persons or property as a result of any defect in design, material
or workmanship arising as a result of any Tenant improvements.
All such work so done by Tenant shall be done in accordance with all laws,
ordinances and rules and regulations of any federal, state, county, municipal or
other public authority and/or Board of Fire Underwriters. Tenant expressly
covenants and agrees that no liens of mechanics, materialmen, laborers,
architects, artisans, contractors, subcontractors or any other lien of any kind
whatsoever shall be created against or imposed upon the Premises, the Property
or the Complex, and that in the event any such claims or liens of any kind
whatsoever shall be asserted or filed by any persons, firms or corporations
performing labor or furnishing material in connection with such work, Tenant
shall pay off or cause the same to be discharged of record within ten (10) days
of notification thereof. All alterations, improvements or changes made by Tenant
to the Premises shall be the property of Landlord and shall remain upon and be
surrendered with the Premises upon the termination of this Lease.
Landlord shall have the right, but not the obligation, to inspect any
alterations during and at the conclusion of construction. If, in Landlord's
reasonable opinion, the same are not installed in accordance with plans and
specifications submitted to Landlord under the requirements of this Section,
then, in addition to any other remedy provided to Landlord under this Lease,
Landlord shall have the right to require Tenant to reconstruct the same to
conform to such plans and specifications and at Tenant's cost and expense.
Tenant acknowledges and agrees that a material condition to the
granting of approval of Landlord to any alterations and/or improvements and/or
repairs required under this Lease or desired by Tenant is that the contractors
who perform such work shall carry a comprehensive liability policy, naming
Landlord as an additional insured thereon, with a combined single limit for
personal or bodily injury of not less than One Million Dollars ($1,000,000) at
Tenant's expense. Landlord may require proof of such insurance coverage from
each contractor at the time of submission of Tenant's request for Landlord's
consent to commence work.
All damage or injury done to the Premises by Tenant or by any persons
who may be in or upon the Premises with the consent (express or implied) of
Tenant, including the cracking or breaking of glass of any windows or doors,
shall be paid for by Tenant and Tenant shall pay for all damage to the Buildings
and any appurtenances thereto caused by Tenant or Tenant's employees, agents,
guests, invitees and/or licensees. Tenant shall not put any curtains, draperies,
blinds or other hangings in, on or beside the windows in the Premises or place
any furniture on the Patios, if any, without first obtaining Landlord's consent,
which shall not be unreasonably withheld or delayed. All normal repairs
necessary to maintain the Premises in a tenantable condition shall be done by or
under the direction of Landlord. Tenant shall promptly notify Landlord of any
damage to the Premises requiring repair. Landlord shall, in the exercise of
prudent business practices, determine those repairs that are necessary to
maintain the Premises in good condition.
15. HAZARDOUS MATERIAL
15.1 DEFINITION OF "ENVIRONMENTAL LAWS"
The term "Environmental Laws" means any and all state,
federal and local statutes, regulations and ordinances relating to the
protection of human health and the environment including any
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regulations, restrictions, or licenses promulgated or issued by the Liberty Lake
Sewer District or other municipal corporation.
15.2 DEFINITION OF "HAZARDOUS MATERIAL"
The term "hazardous Material" means any hazardous or toxic
substance, material or waste, including, but not limited to, those
substances, materials and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 C.F.R. Section 172.101) or by
the United States Environmental Protection Agency as hazardous substances (40
C.F.R. at. 302 and amendments thereto), or as defined as hazardous substances
by RCW 70.105D.020 (7), including petroleum products and their derivatives,
and such other substances, materials and wastes as become regulated or
subject to cleanup authority under any Environmental Laws. Notwithstanding
the foregoing, the term "Hazardous Material" shall not include: (1) chemicals
routinely used in business office areas, or (2) janitorial supplies, cleaning
fluids, or chemicals necessary for the day-to-day operation or other
maintenance of the Premises if the disposition, handling, storage or quantity
of the items described in (1) and (2) herein are at all times in compliance
with all applicable legal requirements.
15.3 LIMITATION ON USES OF HAZARDOUS MATERIAL
Tenant shall:
(a) not cause or permit any Hazardous Material to be brought upon, used,
kept or stored on or about the Premises by Tenant or its agents, contractors or
subtenants without the prior written consent of Landlord;
(b) cause the Premises and all of Tenant's operations conducted thereon to
comply with all Environmental Laws and orders of any governmental authorities
having jurisdiction under any Environmental Laws; and
(c) obtain, keep in effect and comply with all governmental permits and
authorizations required by Environmental Laws with respect to the Premises or
Tenant's operations.
15.4 NOTICES
Tenant shall immediately notify Landlord in writing if Tenant
becomes aware of any of the following:
(a) Any violation of Environmental Laws regarding the Premises or Tenant's
operations;
(b) Any order, notice of violation, fine or penalty or other similar
action relating to Hazardous Material or Environmental laws and to the Premises
or Tenant's operations; or
(c) Any complaint or lawsuit filed or threatened to be filed by any person
or other entity, including, without limitation, any governmental authority,
relating to Hazardous Material or Environmental Laws and to the Premises or
Tenant's operations.
15.5 INDEMNIFICATION
Tenant agrees to defend (with counsel approved by Landlord),
fully indemnify, and hold entirely free and harmless Landlord from and against
all claims, judgments, damages, penalties, fines, costs, liabilities or losses
(including, without limitation, diminution in value of the Premises, damages for
the loss or restriction on the use of rentable or usable space or of any amenity
of the Premises, damages arising from any adverse impact on marketing of space,
sums paid in settlement of
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claims, attorneys' fees, consultant fees and expert fees) that arise during or
after the Lease Term and that are imposed on, or paid by or asserted against
Landlord by reason or on account of, or in connection with, or arising out of
Tenant's use, generation, manufacture, refinement, transportation, treatment,
storage, handling, recycling or disposal of Hazardous Material, or any release
of Hazardous Material in connection with or as a result of Tenant's use or
activities, or of Tenant's agents, contractors or subtenants, or any violation
of any Environmental Law by Tenant or its agents, subcontractors or subtenants;
provided further, however, that Tenant acknowledges that Landlord has disclosed
to Tenant the presence of asbestos floor tiles currently covered by carpeting
within the Premises. In the event any Tenant improvements or other alterations
require Tenant to disturb the floor tiles, Tenant will comply with all
Environmental Laws in connection with the disturbance of such tiles, and will
take all actions necessary to prevent or minimize any damage or personal injury
that may be caused by the release of, or exposure to, such asbestos and shall
pay for the removal of said floor tiles by a licensed asbestos abatement
contractor.
15.6 SURVIVAL
The provisions of this Section 15 shall survive the expiration
or earlier termination of this Lease.
16. ACCESS
16.1 GENERALLY
Landlord and Landlord's employees and agents shall not have any
right to enter the Premises without having given Tenant at least twenty-four
(24) hours prior written notice of such entry, but no such notice shall be
required in cases of emergency involving an imminent risk to persons or property
or in cases of access to the security and electrical rooms as provided in
Section 16.3. When reasonably necessary, Landlord may temporarily close
entrances, doors, corridors, elevators or other facilities without liability to
Tenant by reason of such closure and without such action by Landlord being
construed as an eviction of Tenant or as relieving Tenant from the duty of
observing and performing any of the provisions of this Lease. Landlord shall
have the right to enter the Premises for the purpose of showing the Premises to
prospective tenants within one hundred twenty (120) days prior to the Expiration
Date or sooner termination of the Lease Term. Landlord shall not be liable for
the consequences of admitting by passkey, or refusing to admit to the Premises,
Tenant or Tenant's employees, agents, guests, invitees and/or licensees.
Landlord shall indemnity and hold Tenant harmless from and
against all loss, cost, expense, claim or damage arising from any negligent act
or omission of any employee, agent or invitee of Landlord while in the Premises.
16.2 EXERCISE FACILITIES AND UTILITIES AND TELEPHONE EQUIPMENT ROOMS
Landlord has retained exclusive use of, and does not lease to
Tenant,the water heater room adjacent to the exercise facilities, both located
in Building 2, as outlined on the site plan attached hereto as EXHIBIT B-2.
Landlord will have access through the Premises on an as-needed basis only to the
telephone equipment room, the water heater room and the utility room adjacent to
the water heater room. Landlord's access to such rooms will be limited to
Landlord's technical, maintenance and security personnel and will be by card key
only. Landlord's access to the utility room will be for the purpose of reading
meters and observing the security panel located therein. During the period of
shared access to the telephone equipment room, if either Landlord or Tenant
determines that any repairs, modifications or alterations are necessary in the
telephone equipment room, the party making such determination may make such
repairs, modifications or alterations only after receiving the written approval
of the other party, which party shall not unreasonably withhold or delay such
approval. Landlord agrees to use commercially reasonable best efforts to comply
with all reasonable requests of Tenant to assist
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Tenant in Tenant's installation of its Telephone Switching Equipment and systems
in the Premises. Landlord and Landlord's employees and agents shall not have
access to the exercise facilities through the Premises.
Tenant and its employees will have the right have access to and use of
the exercise room. Landlord shall be responsible for the maintenance of the
exercise equipment and such maintenance costs shall be included in the Operating
Costs referenced in Section 1.11.2 above.
16.3 ELECTRICAL ROOM
Landlord has retained use of, and does not lease to Tenant, the
electrical room located in Building 2, as outlined on the site plan attached
hereto as EXHIBIT B-2. Landlord agrees to use commercially reasonable best
efforts to comply with all reasonable requests of Tenant to assist Tenant in
Tenant's installation of its wiring and connections for computer and electrical
equipment required by Tenant for the operation of its business in the Premises.
Landlord will share use of the electrical room with Tenant. The costs and
expenses that are paid or incurred by Landlord for maintaining, operating and
repairing the electrical room will be included within Operating Costs to be
shared by Tenant under this Lease. In addition, each party shall defend and
indemnify the other party and save the other party harmless from and against any
and all liability, damages, costs or expenses, including reasonable attorneys'
fees, arising from any act, omission or negligence of the indemnifying party or
its employees or agents arising from such party's use of or access to the
electrical room. Tenant shall permit Landlord and Landlord's employees and
agents to enter into, upon and through the Premises, at all times required by
Landlord, for ingress and egress to and from the electrical room. Landlord's
access through the Premises to the electrical room will be limited to Landlord's
technical, maintenance and security personnel. Such access shall be by card-key
only, and shall be on an as-needed basis only. Landlord will keep records of its
access to the electrical room and will provide such records to Tenant upon
request.
17. INSURANCE
17.1 FIRE AND EXTENDED COVERAGE INSURANCE ON TENANT'S PERSONAL
PROPERTY AND FIXTURES
At all times during the Lease Term, Tenant shall keep in force
at Tenant's sole cost and expense All Direct Cause of Loss coverage in companies
reasonably acceptable to Landlord, equal to the full replacement cost of
Tenant's fixtures, furnishings, equipment and contents upon the Premises.
Landlord shall be named as an additional insured on all such policies.
At all times during the Lease Term, Landlord shall keep in force
All Direct Cause of Loss coverage in an amount equal to the full replacement
cost of the Complex in amounts and with companies acceptable to Landlord in the
exercise of prudent business practices. Tenant acknowledges that it will pay its
proportionate share of such insurance pursuant to Sections 1.11.2 and 6 and
Tenant will be named an additional insured on such policies.
17.2 LIABILITY INSURANCE
Tenant shall, during the Lease Term, keep in full force and
effect a policy of public liability and property damage insurance with respect
to the Premises and the business operated by Tenant in the Premises, with a
combined single limit for personal or bodily injury and property damage of not
less than One Million Dollars ($1,000,000). The policy shall name Tenant as
insured, and Landlord as an additional insured and shall contain a clause that
the insurer will not cancel or change the insurance without first giving
Landlord Thirty (30) days' written notice. The insurance shall be provided by an
insurance company approved by Landlord and a copy of the policy or a certificate
of insurance shall be delivered to Landlord. All public liability, property
damage and other liability policies shall be written as primary policies, not
contributing with and not in excess of coverage which Landlord may carry. All
such policies
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shall contain a provision that Landlord, although named as an additional
insured, shall nevertheless be entitled to recover under said policies for any
loss occasioned to Landlord, Landlord's employees and/or agents by reason of the
negligence of Tenant. All such insurance shall specifically insure the
performance by Tenant of the indemnity agreement as to liability for injury to
or death of persons or injury or damage to property as contained in Section 20.
Any insurance (whether liability or casualty) required by the terms of this
Lease to be carried by Tenant may be carried under a blanket policy (or
policies) covering other properties of Tenant or its related or affiliated
corporations, or both; provided, however, that Tenant provide Landlord evidence
reasonably satisfactory to Landlord that (a) Landlord is named as an additional
insured on such policy or policies and (b) the coverage under such policy or
policies is sufficient to cover the limits required herein.
17.3 LANDLORD'S LIABILITY INSURANCE
At all times during the term of this Lease, Landlord shall
maintain in full force and effect comprehensive public liability insurance with
minimum limits of One Million Dollars ($1,000,000) for injury to or death of one
or more persons in any one occurrence and One Million Dollars ($1,000,000) for
damage to or destruction of property in any one occurrence. Any insurance
(whether liability or casualty) required by the terms of this Lease to be
carried by Landlord may be under a blanket policy (or policies) covering other
properties of Landlord and/or its related or affiliated entities.
17.4 LENDER
Any mortgage lender interested in any part of the Buildings or
Premises may, at Landlord's option, be afforded coverage under any policy
required to be secured by Tenant hereunder, by use of a mortgagee's endorsement
to the policy or policies.
18. DAMAGE OR DESTRUCTION
If the Premises or all or part of the Complex shall be destroyed or
rendered untenantable, either wholly or in part, by fire or other unavoidable
casualty such that Tenant cannot reasonably continue to carry out its normal
business activities from the Premises until such damage is repaired, which
repairs Landlord's Architect reasonably believes can be repaired within one
hundred eight (180) days from the casualty, and provided such repairs do not
actually require more than two hundred ten (210) days from the date of the
casualty to be completed, then this Lease shall not terminate. Otherwise, either
party may, by written notice to the other, either (a) terminate this Lease
within sixty (60) days after (i) such casualty or (ii) the end of such two
hundred ten (210) day period, as applicable, or (b) keep this Lease in effect,
in which case Landlord shall restore the Premises to their previous condition;
provided during such restoration Basic Rent and Additional Rent shall be abated
in the same proportion as the untenantable portion of the Premises bears to the
whole thereof; and provided further if the damage is due directly or indirectly
to the fault or neglect of Tenant or Tenant's employees, agents, guests,
invitees and/or licensees, there shall be no abatement of Rent. Landlord shall
not be required to repair or restore fixtures, improvements or other property of
Tenant.
19. WAIVER OF SUBROGATION
Whether the loss or damage is due to the negligence of either Landlord
of Tenant, their employees or agents, or any other cause, Landlord and Tenant do
each herewith and hereby release and relieve the other and any other Tenant, its
employees and agents from responsibility for, and waive their entire claim of
recovery (including deductible amounts under the policies of insurance referred
to below) for, any loss or damage to the real or personal property of either
located anywhere in the Buildings arising out of or incident to the occurrence
of any of the perils which are covered and paid by their respective insurance
policies, with extended coverage endorsements, that each of them is required to
carry under this Lease (regardless of whether such coverage is actually in
effect). Each party shall cause its insurance
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carriers to consent to such waiver and to waive all rights of subrogation
against the other party.
20. INDEMNIFICATION
Subject to Section 19, Tenant shall defend and indemnify Landlord and
save Landlord harmless from and against any and all liability, damages, costs or
expenses, including attorneys' fees, arising from any act, omission or
negligence of Tenant or Tenant's employees, agents, guests, invitees and/or;
licensees in or about the Premises, the Common Area and the Parking Area, or
arising from any breach or default under this Lease by Tenant, or arising from
any accident, injury or damage, howsoever and by whomsoever caused, to any
person or property, occurring in or about the Premises, the Common Area and the
Parking Area; provided that the foregoing provision shall not be construed to
make Tenant responsible for loss, damage, liability or expense resulting from
injuries to third parties caused by the negligence of Landlord or Landlord's
employees, agents and/or invitees.
Landlord shall not be liable for any loss or damage to person or
property sustained by Tenant or other persons, which may be caused by the
buildings or the Premises, or any appurtenances thereto, being out of repair, or
the bursting or leakage of any water, gas, sewer or steam pipe, or by theft, or
by any food born or contagious illness; or by any act, omission or neglect of
any Tenant or occupant, including the Cafeteria and its employees and agents, or
other person, or by any other cause of whatsoever nature except to the extent
that Tenant's loss is caused by the gross negligence, willful misconduct or
wilful omission of Landlord or Landlord's employees or agents. Tenant agrees to
use and occupy the Premises, the Common Area and the Parking Area at Tenant's
own risk and, except as specifically set forth in the preceding sentence, hereby
releases Landlord, Landlord's employees and/or agents from all claims for any
damage or injury to the fullest extent permitted by law.
21. ASSIGNMENT AND SUBLETTING
Subject to the terms set forth herein, Tenant shall not assign,
transfer, mortgage or encumber this Lease nor sublet the whole or any part of
the Premises without First obtaining Landlord's written consent, which consent
may be withheld or conditioned in Landlord's sole reasonable discretion. Any
consent granted by Landlord shall require that such subtenant or assignee
consent to be bound by all of the terms and conditions of this Lease. No such
assignment or subletting shall relieve Tenant of any liability under this Lease
regardless of whether such liability arises by or through Tenant. Assignment or
subletting shall not operate as a waiver of the necessity for a written consent
to any subsequent assignment or subletting, and the terms of such consent shall
be binding upon any person holding by, under or through Tenant Landlord may, at
Landlord's election, collect rent directly, from such assignee or subtenant.
If Tenant is a corporation, then any transfer of this Lease by
operation of law, merger, consolidation or liquidation shall constitute an
assignment for the purpose of this Section; provided, whoever, that as long as
Tenant is a publicly owned company, Landlord's consent to an assignment of this
Lease will not be required as a result of merger, consolidation or liquidation,
or any change in the ownership of, or power to vote, the majority or controlling
interest of Tenant's outstanding voting stock unless (a) such change is the
result of any reorganization or merger by which the Tenant's rights under this
Lease are transferred to a subsidiary or affiliate or any other entity in which
Tenant has controlling interest (in which case Tenant agrees to guaranty
performance under this Lease and upon receipt of such guaranty, an form and
content satisfactory to Landlord, Landlord's consent will automatically be
deemed to be given) or (b) such change results from Tenant's merger with, or
purchase by, any competitor of Landlord.
In the event Tenant should desire to assign this Lease or sublet the
Premises or any part hereof, Tenant shall give Landlord written notice at least
thirty (30) days in advance of the date on which Tenant desires to make such
assignment or sublease, which notice shall specify: (a) the name and business of
the proposed assignee or sublessee, (b) the amount and location of the space
affected, (c) the proposed
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effective date and duration of the subletting or assignment, and (d) the
proposed rental to be paid to Tenant by such sublessee or assignee. Landlord
shall then have a period of fifteen (15) days following receipt of such notice
within which to notify Tenant in writing that Landlord elects either (i) to
permit Tenant to assign or sublet such space, in which event if the proposed
rental rate between Tenant and sublessee is greater than the Rent payable under
this Lease, then such excess rental shall be deemed Additional Rent owed by
Tenant to Landlord under this lease, and the amount of such excess, including
any subsequent increases due to escalation or otherwise, shall be paid by Tenant
to Landlord in the same manner than Tenant pays the Rent hereunder and in
addition thereto, or (ii) to withhold consent to Tenant's assignment or
subleasing such space and to continue this Lease in full force and effect as to
the entire Premises.
22. SIGNS
Tenant shall not inscribe any inscription, or post, place or in any
manner display any sign, notice, picture, placard or poster or any advertising
matter whatsoever, anywhere in or about the Premises or the Buildings at places
visible (either directly or indirectly as an outline or shadow on a glass pane)
from anywhere outside the Premises without first obtaining Landlord's written
consent thereto which consent shall not be unreasonably withheld or delayed.
Tenant shall have the right to place signage on the north wall of Building 1
below the Landlord's signage and subject to Landlord's approval as set forth in
this section. It is understood and agreed that Landlord's signage may be more
prominent than Tenant's signage Tenant shall deliver to Landlord drawings or
plans showing any such sign prior to its installation. Any such consent by
Landlord shall be upon the understanding and condition that Tenant will remove
the same at the Expiration Date or sooner termination of the Lease Term and
Tenant shall repair any damage to the Premises or the Building caused thereby.
23. LIENS AND INSOLVENCY
Tenant shall keep the Premises and the Complex free from any liens
arising out of any work performed and materials ordered or obligations incurred
by Tenant, and Tenant does hereby indemnify and hold Landlord harmless from any
liability arising from such lien. In the event any lien is filed against the
Complex, the Property described on EXHIBIT A or the Premises by any person
claiming by, through or under Tenant, Tenant shall promptly, upon request of
Landlord and at Tenant's sole costs and expense, furnish to Landlord a bond in
form, content and amount, and issued by a surety, satisfactory to Landlord, in
its sole discretion, indemnifying Landlord, the Property and the Complex against
any liability, costs and expenses, including, without limitation, attorneys'
fees, which Landlord may incur as a result thereof. Provided such bond has been
furnished, and after written notice to Landlord, Tenant may contest any such
lien by appropriate proceedings conducted in good faith and with due diligence,
at Tenant's sole cost and expense, if and only if such proceedings suspend the
collection of any amount claimed from Landlord, Tenant, the Property and the
Premises, and neither the Property, the Complex nor the Premises (or any part
thereof) is or will be in danger of being sold, forfeited or lost.
24. DEFAULTS
24.1 EVENTS OF DEFAULT
The following events are referred to, collectively, as "Events
of Default" or, individually, as an "Event of Default":
(a) Tenant defaults in the due and punctual payment of Rent, and such
default continues for five (5) days after written notice from Landlord delivered
by hand to Tenant's last known address or via facsimile to Tenant's last known
facsimile number; however, Tenant will not be entitled to more than one (1)
written notice for monetary defaults during any twelve (12) month period, and if
after such written notice any Rent is not paid within five (5) days of when due,
an Event of Default will be considered to have occurred without further notice:
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(b) This Lease or the Premises or any part of the Premises are taken upon
execution or by other process of law directed against Tenant, or are taken upon
or subject to any attachment by any creditor of Tenant or claimant against
Tenant, and the attachment is not discharged or disposed of within thirty (30)
days after its levy.
(c) Tenant is insolvent or files a petition in bankruptcy or insolvency or
for reorganization or arrangement under the bankruptcy laws of the United States
or under any solvency act of any state, or admits the material allegations of
any such petition by answer or otherwise, or is dissolved or makes an assignment
for the benefit of creditors;
(d) Involuntary proceedings under any such bankruptcy law or insolvency
act or for the dissolution of Tenant are instituted against Tenant, or a
receiver or trustee is appointed for all or substantially all of the property of
Tenant, and such proceeding is not dismissed or such receivership or trusteeship
vacated within sixty (60) days after such institution or appointment; or
(e) Tenant breaches any of the other agreements, terms, covenants or
conditions that this Lease requires Tenant to perform, and such breach continues
for a period of thirty (30) days after written notice from Landlord to Tenant
or, if such breach cannot be cured reasonably within such thirty (30) day
period, if Tenant fails to diligently commence to cure such breach within thirty
(30) days after written notice from Landlord and to complete such cure within a
reasonable time thereafter.
Notice as required herein shall be delivered in compliance with provisions of
Section 30.
24.2 LANDLORD'S REMEDIES
If any one or more Events of Default set forth in Section 24.1
occur, then Landlord has the right, at its election:
(a) To give Tenant written notice by hand delivery to Tenant's last known
address or via facsimile to Tenant's last known facsimile number of Landlord's
intention to terminate this Lease on the earliest date permitted by law or on
any later date specified in such notice, in which case Tenant's right to
possession of the Premises will cease and this Lease will be terminated, except
as to Tenant's liability, as if the expiration of the term fixed in such notice
were the end of the term;
(b) Without further demand or notice, to reenter and take possession of
the Premises or any part of the Premises, repossess the same, expel Tenant and
those claiming through or under Tenant, and remove the effects of both or
either, using such force for such purposes as may be necessary, without being
liable for prosecution, without being deemed guilty of any manner of trespass
and without prejudice to any remedies for arrears of monthly rent or other
amounts payable under this Lease or as a result of any preceding breach of
covenants or conditions; or
(c) Without further demand or notice to cure any Event of Default and to
charge Tenant for the cost of effecting such cure, including, without
limitation, reasonable attorneys' fees and interest on the amount so advanced at
the rate of ten percent (10%) per annum, provided that Landlord will have no
obligation to cure any such Event of Default of Tenant.
Should Landlord elect to reenter as provided in (b), or should Landlord
take possession pursuant to legal proceedings or pursuant to any notice provided
by law, Landlord may, from time to time, without terminating this Lease, relet
the Premises or any part of the Premises in Landlord's or Tenant's name, but for
the account of Tenant, for such term or terms (which may be greater or less than
the period that would otherwise have constituted the balance of the term) and on
such conditions and upon such other terms (which may include concessions of free
rent and alteration and repair of the Premises) as Landlord, in its reasonable
discretion, may determine, and Landlord may collect and receive the Rent.
Landlord will in no way be responsible or liable for any failure to relet the
Premises, or any part of the Premises, or for any
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failure to collect any Rent due upon such reletting. No such reentry or taking
possession of the Premises by Landlord will be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such
intention is given to Tenant. No written notice from Landlord under this Section
24.2 or under a forcible or unlawful entry and detainer statute or similar law
will constitute an election by Landlord to terminate this Lease unless such
notice specifically so states. Landlord reserves the right following any such
reentry or reletting to exercise its right to terminate this Lease by giving
Tenant such written notice, in which event this Lease will terminate as
specified in such notice.
24.3 CERTAIN DAMAGES
In the event that Landlord does not elect to terminate this
Lease as permitted in Section 24.1(a), but on the contrary elects to take
possession as provided in Section 24.2(b), Tenant shall pay to Landlord monthly
Rent and other sums as provided in this Lease that would be payable under this
Lease if such repossession had not occurred, less the net proceeds, if any, of
any reletting of the Premises after deducting all of Landlord's reasonable
expenses in connection with such reletting, including, without limitation, all
repossession costs, brokerage commissions, attorneys' fees, expenses of
employees, alteration and repair costs and expenses of preparation for such
reletting. If, in connection with any reletting, the new lease terms extends
beyond the existing term, or the Premises covered by such new lease include
other premises not part of the Premises, a fair apportionment of the rent
received from such reletting and the expenses incurred in connection with such
reletting as provided in this Section 24.3 will be made in determining the net
proceeds from such reletting, and any rent concessions will be equally
apportioned over the term of the new lease. Tenant shall pay such rent and other
sums to Landlord monthly on the day on which the monthly Rent would have been
payable under this Lease if possession had not been retaken, and the Landlord
will be entitled to receive such rent and other sums from Tenant on each such
day. Landlord will attempt to mitigate damages arising from an Event of Default
by making reasonable efforts to relet the Premises in whole or in part.
24.4 CONTINUING LIABILITY AFTER TERMINATION
If this Lease is terminate on account of the occurrence of an
Event of Default, Tenant will remain liable to Landlord for damages in an amount
equal to monthly Rent and other amounts that would have been owing by Tenant for
the balance of the term had this Lease not been terminated, less the net
proceeds, if any, of any reletting of the Premises by Landlord subsequent to
such termination, after deducting all of Landlord's expenses in connection with
such reletting, including, without limitation, the expenses enumerated in
Section 24.3. Landlord will be entitled to collect such damages from Tenant
monthly on the day on which monthly Rent and other amounts would have been
payable under this Lease if this Lease had not been terminated, and Landlord
will be entitled to receive such monthly Rent and other amounts from Tenant on
each such day. Alternatively, at the option of Landlord, in the event this Lease
is so terminated, Landlord will be entitled to recover against Tenant as damages
for loss of the bargain and not as penalty.
(a) The worth at the time of award of the unpaid Rent that had been earned
at the time of termination;
(b) The worth at the time of award of the amount by which the unpaid Rent
that 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:
(c) The worth at the time of award of the amount by which the unpaid Rent
for the balance of the term of this Lease (had the same not been so terminated
by Landlord) after the time of award exceeds the amount of such rental loss that
Tenant proves could be reasonably avoided; and
(d) Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or, in the ordinary course of
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business, likely to result therefrom.
The "Worth at the time of award" of the amounts referred to in (a) and (b) above
is computed by adding interest at the interest rate of ten percent (10%) per
annum on the termination date from the termination date until the time of the
award. The "worth at the time of award" of the amount referred to in (c) above
is computed by discounting such amount at the discount rate of the Federal
Reserve Bank of Seattle, Washington, at the time of award plus one percent (1%).
24.5 CUMULATIVE REMEDIES
Any suit or suits for the recovery of the amounts and damages
set forth in Sections 24.3 and 24.4 may be brought by Landlord, from time to
time, at Landlord's election, and nothing in this Lease will be deemed to
require Landlord to await the date upon which this Lease or the term would have
expired had there occurred no Event of Default. Each right and remedy provided
for in this Lease is cumulative and is in addition to every other right or
remedy provided for in this Lease or now of hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
by Landlord of any one or more of the right or remedies provided for in this
Lease or now or hereafter existing at law or in equity or by statute or
otherwise will be preclude the simultaneous or later exercise by Landlord of any
or all other rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise. All costs incurred by
Landlord in collecting any amounts and damages owing by Tenant pursuant to the
provisions of this Lease or to enforce any provision of this Lease, including
reasonable attorneys' fees from the date any such matter is turned over to an
attorney, whether or not one or more actions are commenced by Landlord, will
also be recoverable by Landlord from Tenant.
25. PRIORITY
This Lease will be subordinate to any mortgage or deed of trust now
existing upon the Premises or the Property and to any and all advances to be
made thereunder, and to interest thereon, and all renewals, replacements or
extensions thereof. Tenant agrees to subordinate its interest in the Premises
and under this Lease to the lien of a future mortgage or deed of trust which
secures a loan to Landlord for the benefit of the Complex or Premises (or a loan
to refinance such a loan), and further agrees to attorn to the holder of such
mortgage or such deed of trust, provided that the holder of such mortgage or
deed of trust delivers to Tenant a nondisturbance agreement providing that so
long as Tenant is not in default under this Lease, Tenant's possession of the
Premises and rights under this Lease shall not be effected by a foreclosure, a
deed in lieu of foreclosure or any other post-default remedy or proceeding under
such mortgage or deed of trust.
26. NONWAIVER
Waiver by Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant or
condition, or of any subsequent breach of the same or any other term, covenant
or condition herein contained. The subsequent acceptance of Rent by Landlord
shall not be deemed to be a waiver of any preceding breach by Tenant of any
term, covenant or condition of this Lease, other than the failure of Tenant to
pay the particular Rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such Rent.
27. SURRENDER OF POSSESSION
Upon the Expiration Date or sooner termination of the Lease Term,
whether by lapse of time or otherwise, Tenant shall promptly and peacefully
surrender the Premises to Landlord.
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28. HOLDOVER
If Tenant shall, with the written consent of Landlord, hold over after
the Expiration Date of the Lease Term, Tenant shall be deemed to be occupying
the Premises on a month-to-month tenancy, which tenancy may be terminated as
provided by the laws of the State of Washington. During such tenancy, Tenant
agrees to pay to Landlord twice the Basic Rent as set forth herein, plus
Additional Rent unless a different rate shall be agreed upon, and to be bound by
all of the terms, covenants and conditions herein specified, so far as
applicable.
29. CONDEMNATION
If all of the Premises, or such portions of Building 2 as may be
required for the reasonable use of the Premises, are taken by eminent domain,
this Lease shall automatically terminate as of the date Tenant is required to
vacate the Premises and all Rent shall be paid to that date. In case of a taking
of a part of the Premises, or a portion of Building 2 not required for the
reasonable use of the Premises, then this Lease shall continue in full force and
effect and the Rent shall be equitable reduced based on the proportion by which
Tenant's Percentage of the Complex is reduced, such Rent reduction to be
effective as of the date possession of such portion is delivered to the
condemning authority. Landlord reserves all rights to damage to the Premises for
any taking by eminent domain, and Tenant hereby assigns to Landlord any right
Tenant may have to such damages or award, and Tenant shall make no claim against
Landlord for damages for termination of the leasehold interest or interference
with Tenant's business. Tenant shall have the right, however, to claim and
recover from the condemning authority compensation for any loss to which Tenant
may be put for Tenant's moving expenses, provided that such damages may be
claimed only if they are awarded separately in the eminent domain proceedings
and not as part of the damages recoverable by Landlord.
30. NOTICES
Any notices, consents, approvals, elections, submissions, requests or
demands required or permitted to be given under this Lease or pursuant to any
law or governmental regulation by Landlord to Tenant or by Tenant to Landlord
shall be in writing (whether or not expressly so provided) and shall be deemed
received and effective five (5) days after being deposited in the United States
mail, registered or certified mail, return receipt requested, postage prepaid or
one (1) business day after being sent by overnight express mail or nationally
recognized courier service (e.g. Federal Express) to Landlord or Tenant, at the
respective addresses set forth below or such other addresses as either party may
designate by notice to the other from time to time. In lieu of registered or
certified mail, and in any event during any period of postal strike or other
interference with the mails, any notice may be given by personal delivery with a
receipt signed by the person served or by any person authorized by law to serve
process in the jurisdiction where such service is accomplished and shall be
effective when received. The address for notices to Landlord shall be Spokane
Teachers Credit Union, Att.: Xxxxxx Xxxxxxxxx, 000 X. Xxxx, X. X. Xxx 0000,
Xxxxxxx, XX 00000-0000. The address for notices to Tenant shall be, Software
Spectrum, Inc. Att.: Xxxxx Xxxxxxxx at 0000 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000
and a copy to General Counsel.
31. COSTS AND ATTORNEYS' FEES
If Tenant or Landlord shall take any action for any relief against the
other, declaratory or otherwise, arising out of this Lease, including any suit
by Landlord for the recovery or rent or possession of the Premises, the losing
party shall pay the successful party a reasonable sum for attorneys' fees and
costs in such action, at trial and on appeal, and such attorneys' fees and costs
shall be deemed to have accrued on the commencement of such action.
In the event Tenant requests Landlord's consent to any assignment or
sublease hereunder or to any modification or amendment of this Lease, then
Tenant shall pay reasonable attorneys' fees
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incurred by Landlord in connection with Landlord's review of such request and
preparation of any documents required to evidence Landlord's consent, if
granted.
32. LANDLORD'S LIABILITY
Anything in this Lease to the contrary notwithstanding, covenants,
undertakings and agreements herein made on the part of Landlord are made and
intended not as personal covenants, undertakings and agreements or for the
purpose of binding Landlord personally or the assets of,Landlord except
Landlord's interest in the Premises and the Complex, but are made and intended
for the purpose of binding only Landlord's interest in the Premises and Complex,
including, but not limited to, any and all net consideration received by
Landlord from the sale of all or any portion thereof, and all net insurance and
condemnation proceeds paid to Landlord in connection therewith. No personal
liability or personal responsibility is assumed by, or shall at any time be
asserted or enforceable against, Landlord or Landlord's heirs, legal
representatives, successors or assigns on account of this Lease or on account of
any covenant, undertaking or agreement of Landlord contained in this Lease.
33. ESTOPPEL CERTIFICATES
Tenant shall, from time to time upon written request of Landlord,
execute, acknowledge and deliver to Landlord or Landlord's designee a written
statement stating: the date of this Lease was executed and the date it expires;
the date Tenant entered into occupancy of the Premises; the amount of Basic Rent
and Additional Rent and the date to which such Rent has been paid; and
certifying (to the extent that the same is true and correct): that this Lease is
in full force and effect and has not been assigned, modified, supplemented or
amended in any way (or specifying the date of agreement so effecting this
Lease); that this Lease represents the entire agreement between the parties as
to this leasing; that any conditions under this Lease to be performed by
Landlord have been satisfied; that any required contributions by Landlord to
Tenant on account of Tenant's improvements have been received; that there are no
existing defenses or offsets which Tenant has against the enforcement of this
Lease by Landlord; that no Rent has been paid in advance; and stating the amount
of the Security Deposit paid to Landlord. It is intended that any such statement
may be relief upon by a prospective purchaser of Landlord's interest or a
mortgagee of Landlord's interest or assignee of any mortgage upon Landlord's
interest in the Property. If Tenant shall fail to respond within ten (10)
business days of receipt by Tenant of a written request by Landlord as herein
provided, Tenant shall be deemed to have given such certificate as above
provided without modification and shall be deemed to have admitted the accuracy
of any information supplied by Landlord to a prospective purchase or mortgagee
and that this Lease is in full force and effect, that there are no uncured
defaults in Landlord's performance;, that the Security Deposit is as stated in
this Lease and that not more than one month's Rent has been paid in advance.
34. TRANSFER OF LANDLORD'S INTEREST
This Lease shall be assignable by Landlord without the consent of
Tenant. In the event of any transfer or transfers of Landlord's interest in the
Premises or the Property, other than a transfer for security purposes only, the
transferor shall be automatically relieved of any and all obligations and
liabilities on the part of Landlord accruing from and after the date of such
transfer and Tenant agrees to attorn to the transferee.
35. RIGHT TO PERFORM
If Tenant shall fall to pay any sum of money, other than Rent,
required to be paid by Tenant hereunder or shall fail to perform any other act
on Tenant's part to be performed hereunder, and such failure shall continue for
ten (10) business days after notice thereof by Landlord, Landlord may, but shall
not be obligated so to do, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment or perform any such other act on
Tenant's part to be made or performed as provided in this Lease. Landlord shall
have (in addition to any other right or remedy of Landlord) the
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same rights and remedies in the event of the nonpayment of sums due under this
Section as in the case of default by Tenant in the payment of Rent.
36. EXECUTION OF LEASE BY LANDLORD
The submission of this document for examination and negotiation does
not constitute an offer to lease, or a reservation of or option for the
Premises, and this document shall become effective and binding only upon
execution and delivery by Landlord. No act or omission of any employee or agent
of Landlord or of Landlord's broker shall alter, change or modify any of the
provisions hereof.
37. GENERAL
37.1 TITLES
The title to sections of this Lease are not a part of this Lease
and shall have no effect upon the construction or interpretation of any part
hereof.
37.2 GOVERNING LAW
This Lease shall be construed and governed by the laws of the
State of Washington. Spokane County Superior Court shall be the venue for any
lawsuit or other legal proceedings.
37.3 BINDING EFFECT
All of the covenants, agreements, terms and conditions contained
in this Lease shall apply to and be binding upon Landlord and Tenant and their
respective heirs, executors, administrators, successors and assigns.
37.4 NO BROKER ENGAGED BY TENANT
Tenant represents and warrants to Landlord that Tenant has not
engaged any broker, finder or other person who would be entitled to any
commission or fee in respect of the negotiation, execution or delivery of this
Lease sand shall indemnify and hold harmless Landlord against any loss, cost,
liability or expense incurred by Landlord as a result of any claim asserted by
any such broker, finder or other person on the basis of any arrangements or
agreements made or alleged to have been made by or on behalf of Tenant.
37.5 ENTIRE AGREEMENT
This Lease contains all covenants and agreements between
Landlord and Tenant relating in any manner to the lease, use and occupancy of
the Premises and other matters set forth in this Lease. No prior agreements or
understanding pertaining to the same shall be valid or of any force or effect
and the covenants and agreements of this Lease shall not be altered, modified or
added to except in writing signed by Landlord and Tenant.
37.6 VALIDITY
Any provision of this Lease which shall prove to be invalid,
void or illegal shall in no way affect, impair or invalidate any other provision
hereof and the remaining provisions hereof shall nevertheless remain in full
force and effect.
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37.7 INTEREST
Any Rent or other sums payable by Tenant to Landlord which shall
not be paid within fifteen (15) days after the due date thereof shall bear
interest from the date tenant received notification that such sums are past due
at the Default Rate calculated from the date of delinquency to the date of
payment.
37.8 INTERPRETATION
This Agreement and each of the terms and provisions hereof are
deemed to have been explicitly negotiated between the parties, and the language
in all parts of this Agreement shall, in all cases, be construed according to
its fair meaning and not strictly for or against either party.
37.9 AUTHORIZATION
If Tenant is a corporation or partnership, Tenant represents and
warrants that the execution, delivery and performance of this Lease have been
duly authorized by all necessary persons. The officer or partner executing this
Lease on behalf of Tenant further individually represents and warrants that he
or she is duly authorized to execute and deliver this Lease to Landlord on
behalf of Tenant.
37.10 NO RECORDING
Tenant shall not record this Lease or any notice or memorandum
thereof in the records of the county auditor without Landlord's prior written
consent.
IN WITNESS WHEREOF, this Lease has been executed the day and year first
above set forth.
LANDLORD: SPOKANE TEACHERS CREDIT UNION
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
(signature)
XXXXXX X. XXXXXXXXX
---------------------------------------
(print name)
Title: President/CEO
---------------------------------------
TENANT: SOFTWARE SPECTRUM, INC
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
(signature)
Xxxxxx X. Xxxxxx
---------------------------------------
(print name)
Title: Vice President and General Counsel
---------------------------------------
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STATE OF WASHINGTON )
) ss
County of Spokane )
On this 1st day of May, 1998, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------
to me known to be the person who signed as ____________________ of SPOKANE
TEACHERS CREDIT UNION, the entity that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act
and deed of said entity for the uses and purposed therein mentioned, and on oath
that he was duly elected, qualified and acting as said officer of said entity,
that he was authorized to execute said instrument and that the seal affixed,
if any, is the seal of said entity.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day
and year first above written.
(SEAL) /s/ Xxxxx X. X'Xxxx
----------------------------------------
Notary Public in and for the State of
Washington, residing at Spokane
My Commission expires: 3/2/02
------------------
STATE OF TEXAS )
) ss
County of DALLAS )
On this 30th day of April, 1998, before me, the undersigned, a Notary
Public in and for the State of Texas, duly commissioned and sworn, personally
appeared
Xxxxxx X. Xxxxxx
------------------------------------------------------------
to me known to be the person who signed as Vice President & General Counsel of
SOFTWARE SPECTRUM, INC., the corporation that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act
and deed of said corporation for the uses and purposed therein mentioned, and on
oath that he was duly elected, qualified and acting as said officer of said
corporation, that he was authorized to execute said instrument and that the
corporate seal affixed, if any, is the seal of said corporation.
(STAMP) Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------
Notary Public in and for the State of
Texas, residing at 0000 Xxxxxxx, Xxxxxxxx, XX
--------------------------
My Commission Expires: March 31, 2001
---------------
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EXHIBIT A, LEGAL DESCRIPTION - PAGE 1 OF 4
Parcel A:
That portion of Xxxxxx 0, Xxxxx 1, Binding Site Plan 33-92, according to Site
Plan recorded in Book 1 of Binding Site Plans, Pages 61 and 62, in Spokane
County, Washington, described as follows:
BEGINNING at the Xxxxxxxxx xxxxxx xx Xxxxxx 0 xx Xxxxxxx Xxxxxx Binding Site
Plan No. 33-92; Thence along the Westerly line of said Parcel 1 the following
five courses:
1. North 02DEG. 56'04" West, 346.82 feet;
2. North 69DEG. 35'51" West, 20.25 feet;
3. Northwesterly 84.12 feet along the arc of a non-tangent circular curve
concave to the Northeast said curve having a radius of 218.89 feet, a central
angle of 22DEG. 01'11" and a long chord that bears North 54DEG. 21'51" West,
83.61 feet;
4. Northwesterly 13.33 feet along the arc of a circular curve concave to the
Southwest, said curve having a radius of 20.00 feet, a central angle of 38DEG.
10'56" and a long chord that bears North 62DEG. 26'44" West, 13.08 feet;
5. Northwesterly 18.55 feet along the arc of a circular curve concave to the
Northeast, said curve having a radius of 50.00 feet, a central angle of 21DEG.
15'27" and a long chord that bears North 70DEG. 54'29" West, 18.44 feet, to the
Northwest corner of said Parcel 1;
Thence North 59DEG. 53'21" East, along the North line of said Parcel 1,315.86
feet;
Thence South 02DEG. 56'04" East, 564.79 feet, to the Northerly right of way line
of Mission Avenue;
Thence South 87DEG. 03'56" West along said right of way line, 168.66 feet to the
Point of Beginning.
Parcel B:
A Parcel of Land located in the East half of the East half of the Southwest
quarter and the West half of the West half of the Southeast quarter of Section
10, Township 25 North, Range 45 East, X.X., in Spokane County, Washington, more
particularly described as follows:
BEGINNING at the South quarter corner of said Section from which the Southeast
corner of said Section bears North 87DEG. 03'56" East;
Thence North 30DEG. 56'04" West, a distance of 562.49 feet to Southerly right of
way of the Chicago, Milwaukee and St. Xxxx Railroad;
Thence North 59DEG. 53'21" East along said Southerly right of way, a distance of
30.00 feet to the true point of beginning of this description;
Thence continue along said Southerly right of way North 59DEG. 53'21" East, a
distance of 480.00 feet to the most Northwesterly corner of Parcel 1 of
Homestead Industrial Properties No. III, according to Binding Site Plan recorded
in Volume 1 of Binding Site Plans, Page 12;
EXHIBIT A, LEGAL DESCRIPTION - PAGE 2 OF 4
Thence South 30DEG. 56'04" East, a distance of 411.00 feet;
Thence South 68DEG. 44'58" West, a distance of 486.89 feet;
Thence North 30DEG. 56'04" West, a distance of 336.00 feet to the True Point of
Beginning.
Parcel C:
A Parcel of land located in the East half of the East half of the Southwest
quarter and the West half of the West half of the Southeast quarter of Section
10, Township 25 North, Range 45 East, X.X., in Spokane County, Washington, being
more particularly described as follows:
BEGINNING at the South quarter corner of said Section from which the Southeast
corner of said section bears North 87DEG. 03'56" East; Thence North 30DEG.
56'04" West, a distance of 33.97 feet to the Northerly right of way of Mission
Avenue as it now exists 60.00 feet in width on March 27, 1979, and the True
Point of Beginning:
Thence South 87DEG. 03'56" West, a distance of 33.97 feet;
Thence North 30DEG. 56'04" West a distance of 413.86 feet to the beginning of a
non-tangent curve concave to the Northeast from which the radius bears North
19DEG. 24'09" West, a distance of 50.00 feet;
Thence Northerly along said curve through a central angle of 156DEG. 56'19", an
arc distance of 136.96 feet;
Thence North 30DEG. 56'04" West, a distance of 1.16 feet to the former Southerly
right of way of the Chicago, Milwaukee and St. Xxxx Railroad;
Thence North 59DEG. 53'21" East, a distance of 60.00 feet;
Thence South 30DEG. 56'04" East, a distance of 544.03 feet to the Northerly
right of way of said Mission Avenue;
Thence South 87DEG. 03'56" West, a distance of 33.97 feet to the True Point of
Beginning;
EXCEPT that portion deeded to Spokane County for Signal Road by Right of Way
Deed recorded April 1, 1986, under Auditor's File No. 8604010235, described as
follows:
BEGINNING at the South quarter corner of said Section from which the Southeast
corner of said Section bears North 87DEG. 03'56" East;
Thence North 30DEG. 56'04" West, a distance of 33.97 feet to the Northerly right
of way line of Mission Avenue as it now exists 60.00 feet in width on March 27,
1979, and the True Point of Beginning;
Thence South 87DEG. 03'56" West, a distance of 33.97 feet;
Thence North 30DEG. 56'04" West, a distance of 513.01 feet to the Southerly
right of way line of the Chicago, Milwaukee and St. Xxxx Railroad;
Thence North 59DEG. 53'21" East, a distance of 60.00 feet;
Thence South 30DEG. 56'04" East, a distance of 544.03 feet to the Northerly
right of way line of said Mission Avenue;
Thence South 87DEG. 03'56" West, a distance of 33.97 feet to the True Point of
Beginning.
EXHIBIT A, LEGAL DESCRIPTION - PAGE 3 OF 4
Parcel D:
A Parcel of Land in the South half of Section 10, Township 25 North, Range 45
East, X.X., in Spokane County, Washington, described as follows:
BEGINNING at the South quarter corner of said Section, from which the Southeast
corner of said Section bears North 87DEG. 03'56" East;
Thence North 30DEG. 56'04" West, a distance of 33.97 feet to the North margin of
Mission Avenue as it now exists 60 feet in width on May 27, 1980;
Thence North 87DEG. 03'56" East, a distance of 33.97 feet to the True Point of
Beginning of this description, said point being the Southeast corner of Parcel
"B" of the Record of Survey recorded in Book 18 of Surveys, Page 27, in the
Spokane Auditor's Office;
Thence North 30DEG. 56'04" West, along the East boundary of said Parcel "B", a
distance of 208.03 feet to the Southwest corner of that parcel of land conveyed
to Xxxxxxx X. Main and Xxxxx Xxx Main, doing business as Xxxxxxx X. Main
Investment Company, by deed dated January 10, 1980, and recorded January 11,
1980, in said Auditor's Office under Auditor's File No. 0000000000;
Thence North 68DEG. 44'58" East along the South boundary of said Parcel, a
distance of 486.89 feet to the Southeast corner of said Parcel;
Thence North 30DEG. 56'04" West along the boundary of said Parcel and the
boundary of Parcel "A" of said Record of Survey, a distance of 25.00 feet;
Thence North 59DEG. 56'27" East, a distance of 201.24 feet to the beginning of a
non-tangent curve concave to the Northeast having a radius of 50.00 feet (to
which a radial line bears South 29DEG. 43'15" West);
Thence Southeasterly along said curve through a central angle of 21DEG. 15'27"
an arc distance of 18.55 feet to the beginning of a reverse curve concave to the
Southwest having a radius of 20.00 feet;
Thence Southeasterly along said curve through a central angle of 38DEG. 10'56"
an arc distance of 13.33 feet to the beginning of a reverse curve concave to the
Northeast having a radius of 218.89 feet (to which a radial line bears South
46DEG. 38'44" West);
Thence Southeasterly along said curve through a central angle of 27DEG. 23'09"
an arc distance of 104.62 feet;
Thence South 02DEG. 56'04" East a distance of 376.22 feet to said North margin
of Mission Avenue;
Thence South 87DEG. 03'56" West along said North margin, a distance of 644.25
feet to the True Point of Beginning.
EXCEPT that portion deeded to Spokane County for Mission Avenue by right of way
deed recorded October 7, 1993 under Auditor's File No. 9310070105 described as
follows:
Exhibit A, Legal Description - Page 4 of 4
BEGINNING at the Southeast corner of that parcel shown on the Record of Survey
recorded in Book 22 of Surveys, page 41;
Thence North 02DEG. 56'04" West, along the East line of said Parcel, a distance
of 16 feet;
Thence South 87DEG. 03'56" West, parallel with the South line of said Parcel, a
distance of 353.73 feet to the beginning of a curve concave to the Southeast
with a radius of 866.05 feet;
Thence Southwesterly along said curve to the South line of said Parcel;
Thence North 87DEG. 03'56" East, along said South line to the Point of
Beginning.
Parcel E:
A parcel of land located in the South half of Section 10, Township 25 North,
Range 45 East, X.X., in Spokane County, Washington, described as follows:
BEGINNING at the South quarter corner of said Section from which the Southeast
corner of said Section bears North 87DEG. 03'56" East; Thence North 30DEG.
56'04" West, 33.97 feet to the Northerly margin of Mission Avenue;
Thence North 87DEG. 03'56" East along said Northerly margin, a distance of
678.22 feet to a point, said point being the Southeast corner of that parcel
shown on the survey recorded in Book 22 of Surveys, Page 41;
Thence North 02DEG. 56'04" West along the Easterly boundary of said parcel, a
distance of 376.22 feet to an angle point in the boundary of said parcel and the
True Point of Beginning of this description;
Thence continue North 02DEG. 56'04" West, 0.60 feet;
Thence North 69DEG. 35'51" West, 20.25 feet to a point on the Northeasterly
boundary of said parcel, said point being the beginning to a non-tangent curve
concave to the Northeast, the radius of which bears North 24DEG. 37'34" East,
218.89 feet;
Thence Easterly along said curve through a central angle of 5DEG. 21'58" an arc
distance of 20.50 feet to the True Point of Beginning, in Spokane County,
Washington.
[SITE PLAN]
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