EXHIBIT 10.29
LEASE
1. PARTIES. This Lease ("Lease"), dated for reference purposes this 17 day
of January, 2001, is between XXXXXXXXXX-XXXXX, L.L.C., a Washington
Limited Liability Company ("Landlord"), and ETMA CORPORATION, a
Washington Corporation ("Tenant").
2. PREMISES
2.1 DESCRIPTION. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, on the terms and conditions herein, the commercial
premise at the common address of 00000 XX 00xx Xx., Xxxxxxx, Xxxx Xxxxxx,
Xxxxxxxxxx (the "Premises"). The Premises, which contain approximately 28,820
feet of warehouse space, and approximately 1,200 square feet of office space,
restrooms, and a lunchroom, is legally described on Exhibit No. 1.
2.2 CONDITION. Landlord makes no representation regarding the
condition of the Premises. Tenant represents that it has inspected the Premises
and accepts the Premises in its "as is" condition, except that the Premises
shall be habitable and all mechanical and electrical systems shall be delivered
in good working order.
3. TERM
3.1 INITIAL TERM. The Initial Term of this Lease shall be for five
(5) years, commencing on the later of (i) February 1, 2001, or (ii) fourteen
(14) days after Tenant receives written notice that an agreement terminating the
existing lease has been executed (or sooner at Tenant's option) (the
"Commencement Date"), and ending on January 31, 2006.
3.2 DELIVERY OF POSSESSION. Tenant shall be entitled to possession
of the Premises once (i) this Lease has been fully executed, (ii) Tenant has
delivered to Landlord the Prepaid Rent as provided in Article 4.2 herein, and
(iii) Landlord has executed an agreement with the current tenant terminating the
existing lease.
3.3 CERTIFICATE OF OCCUPANCY. Any Certificate of Occupancy, or
permits, which may be required by local municipalities for Tenant's specific or
intended use of the Premises shall be the obligation of the Tenant to obtain,
and shall be at the sole cost and expense of Tenant.
4. BASE RENT AND ADDITIONAL RENT
4.1 BASE RENT. Tenant agrees to pay Landlord on or before the
first day of each month during the term of the Lease, at such place as Landlord
may designate in writing, without prior notice or demand, Base Rent as follows:
Months 1 through 29: $21,133.50 ($.675/sq. ft for warehouse,
and $1.40/sq. ft. for office)
Months 30 though 60: $22,634.50 ($.725/sq. ft for warehouse,
and $1.45/sq. ft. for office)
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4.2 PREPAID RENT. Tenant, at the time of execution of this Lease,
shall pay to Landlord the sum of Forty Two Thousand Two Hundred Sixty Seven and
00/100 Dollars ($42,267.00). This sum shall be held by Landlord, and shall be
applied to the Base Rent which will be due and owing by Tenant for the 24th
month and the 36th month of the Lease term.
4.3 ADDITIONAL RENT. Tenant shall pay to Landlord as Additional
Rent the following amounts:
(a) REIMBURSABLE OPERATING EXPENSES. One-Twelfth (1/12)
of the total Reimbursable Operating Expenses Landlord
estimates will be incurred for the current calendar year.
Reimbursable Expenses shall be deemed to include, but not
necessarily be limited to (i) utilities, (ii) fire and
extended coverage insurance on the Premises and Landlord's
liability insurance, (iii) maintenance and repairs (excluding
structural repairs and roof replacement but including roof
maintenance), (iv) landscaping, parking lot, sidewalk, and
mechanical systems repairs, replacement, and maintenance, and
(v) monthly management fees in the amount of four percent (4%)
of the scheduled monthly Base Rent. The only cost of ownership
not included within the definition of Reimbursable Operating
Expenses shall be costs incurred in making major structural
repairs, and in the replacement of the roof. The estimated
monthly Additional Rent payment for the calendar year 2001,
excluding real property taxes and the water tower LID
assessment, is $1,982.00. This amount shall be paid on a
monthly basis at the time of payment of the monthly Base Rent.
(b) TAXES. The term "Taxes" shall include any form of
assessment, license fee, rent, tax, levy, penalty, or real
estate tax (other than inheritance or estate taxes), imposed
by any authority having the direct or indirect power to tax
any legal or equitable interest of Landlord in the Premises or
in the real property of which the Premises are a part. At the
time of execution of this Lease, the only applicable tax to be
paid by Tenant to Landlord is the annual real property tax
which is paid on a semi-annual basis. Such taxes paid for
calendar year 2000 were $28,443.26. This amount shall be paid
to Landlord on or before the later of (i) fifteen (15) days
after Tenant receives a copy of the Landlord's tax statement,
or (ii) thirty (30) days prior to the last date (the "due
date") that the semiannual payment can be paid without
thereafter accruing any interest or penalties. Tenant
acknowledges that under current law the due dates are April 30
and October 31 of each calendar year.
(c) ASSESSMENTS. The water tower LID assessment, and any
other assessment which hereafter becomes an encumbrance
against the Premises. If the assessment can lawfully be paid
in installments Tenant shall have the right to pay the
assessment in such installments, rather than the entire
assessment balance. The amount of any assessment due shall be
paid to Landlord on or before the later of (i) fifteen (15)
days after receipt of a copy of the Landlord's assessment
invoice, or (ii) thirty (30) days prior to the last date (the
"due date") that the assessment, or
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assessment installment if applicable, can be paid without
thereafter accruing any interest or penalties.
4.4 ANNUAL ADJUSTMENT OF REIMBURSABLE OPERATING EXPENSES. Monthly
payments of Reimbursable Operating Expenses shall be based upon a budget
established by the Landlord and delivered to the Tenant at least thirty (30)
days prior to the end of each calendar year. Within sixty (60) days after the
end of each calendar year (commencing at the end of calendar year 2001),
Landlord will provide Tenant with a statement of the actual expenses incurred by
the Landlord and chargeable to the Tenant pursuant to Article 4.3(a). If the
actual expenses are greater than the amount paid by the Tenant during the
calendar year, Tenant shall pay the difference within thirty (30) days of
receipt of the statement from the Landlord. If the Tenant has paid more than the
actual expenses set forth in the Landlord's accountings, then the overage shall
be credited to the next rental obligations due and/or which will become due by
the Tenant. The Landlord shall make its books and records concerning expenses
chargeable under Article 4.3(a) available for inspection by the Tenant at
reasonable times and without cost.
5. LATE CHARGE. Tenant acknowledges that late payment by Tenant to
Landlord of rent, or additional rent, will cause Landlord to incur costs not
contemplated by this Lease, the exact amount which would be extremely difficult
to ascertain. Such costs include, but are not limited to, processing and
accounting charges, and late charges which may be imposed on Landlord by the
terms of any mortgage or trust deed covering the Premises. Therefore, in the
event Landlord does not receive any installment of rent, or additional rent, or
any other sum due under this Lease within seven (7) days after such sum is due,
Tenant shall pay to Landlord, as additional rent, a late charge equal to five
percent (5%) per month of each such installment or other sum due.
6. SECURITY DEPOSIT. Tenant shall deposit with Landlord, upon execution of
this Lease, the sum of Twenty Two Thousand Six Hundred Thirty Four and 00/100
Dollars ($22,634.50) as security for Tenant's faithful performance of Tenant's
obligations under this Lease. If Tenant fails to pay Base Rent, Additional Rent
or other charges due herein, or otherwise defaults with respect to any provision
of this Lease, Landlord may apply all or any portion of said deposit to the
payment of the arrearage or any other sum to which Landlord may become obligated
by reason of Tenant's default. If Landlord so uses or applies all or any portion
of the deposit, Tenant shall within five (5) days after written demand deposit
cash with Landlord in an amount sufficient to restore said deposit to the full
original amount and Tenant's failure to do so shall be a breach of this Lease.
Landlord shall keep said deposit in a separate interest bearing account. If
Tenant performs all of Tenant's obligations herein, the deposit shall be
returned, with earned interest thereon, to Tenant within fourteen (14) days
after the expiration of the lease term.
7. UTILITIES. Tenant shall pay, prior to delinquency all water, gas, heat,
light, power, telephone and other utilities and services supplied to the
Premises, together with any taxes thereon, and shall hold Landlord harmless from
any liability thereon.
8. PERSONAL PROPERTY TAXES. Tenant shall pay, prior to delinquency all
taxes assessed against and levied upon Leasehold Improvements, trade fixtures,
furnishings,
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equipment and all other personal property of Tenant contained in the Premises.
Tenant shall cause all leasehold improvements, trade fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property of Landlord. If any of Tenant's personal property is
assessed with Landlord's real property, Tenant shall pay Landlord the taxes
attributable to Tenant's property within ten (10) days after receipt of a
written statement setting forth the amount owing.
9. INSURANCE AND LIABILITY
9.1 FIRE INSURANCE. Landlord will maintain fire and extended
coverage insurance in the amount of the full Insurable value of the Premises.
Tenant will be assessed for it's pro rata share of the expense of maintaining
such Insurance as provided in Article 4.
9.2 TENANT'S PROPERTY INSURANCE. Tenant shall maintain in full
force and effect on all of its fixtures and equipment in the Premises a policy
of fire and extended coverage Insurance with standard coverage endorsement to
the extent of at least eighty percent (80%) of their insurable value. Landlord
will not carry Insurance on Tenant's possessions. Tenant shall furnish Landlord
with a certificate of such policy prior to the commencement of this Lease, and
whenever required shall satisfy Landlord that such policy is in full force and
effect.
9.3 LIABILITY INSURANCE. Tenant shall provide and maintain
throughout the term of the Lease comprehensive liability insurance insuring
Landlord and Tenant against all liability arising from injury to person or
property in any way related to the use, occupancy or maintenance of the Premises
by Tenant, and Tenant's employees, principals, invitees and guests. The coverage
shall be in an amount not less than Two Million and 00/100 Dollars ($2,000,000)
single limit. Landlord shall be named as an additional insured on said policy
which shall be primary and non-contributing with any insurance carried by the
Landlord. The liability insurance policy shall contain an endorsement requiring
at least thirty (30) days written notice to Landlord prior to any cancellation
or reduction in the amount of coverage. Tenant will provide, prior to the
Commencement Date, a certificate establishing that Landlord has been named as
additional insured, and that the endorsements have been added. The limit of such
insurance shall not limit the liability of the Tenant hereunder. If Tenant fails
to procure and maintain said insurance, Landlord shall have the option to
procure and maintain the insurance at the expense of Tenant. Insurance required
hereunder shall be issued by companies rated A:XII or better in "Best's Key
Rating Guide." All such policies shall be written as primary policies not
contributing with and not in excess of coverage which Landlord may carry.
9.4 WAIVER OF SUBROGATION. Neither Landlord nor Tenant shall be
liable to the other party or to any insurance company insuring the other party
(by way of subrogation or otherwise) for any loss or damage to any building,
structure or tangible personal property of the other occurring in or about the
Premises, even though such loss or damage might have been occasioned by the
negligence of such party, its agents or employees, if such loss or damage is
covered by insurance benefiting the party suffering such loss or damage or was
required to be covered by insurance under terms of this Lease. Each party shall
cause each insurance policy obtained by it to contain the waiver of subrogation
clause.
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9.5 HOLD HARMLESS. Tenant shall indemnify, defend and hold
Landlord, its officers, agents, employees, and contractors harmless from all
losses, damages, fines, penalties, claims, liabilities and expenses (including
Landlord's personnel and overhead costs and attorneys' fees and other costs
incurred in connection with such claims regardless of whether claims involve
litigation) resulting from any actual or alleged injury to any person or from
any actual or alleged loss of, or damage to, any property attributable to
Tenant's operation or occupation of the Premises or caused by, or resulting
from, any act or omission of Tenant or any licensee, assignee, or
concessionaire, or of any officer, agent, employee, guest or invitee of any such
person in or about the Premises, or Tenant's breach of its obligations under
this Lease. Tenant shall also pay for, indemnify, defend and hold Landlord, and
its officers, partners, members, agents, employees, and contractors harmless
from all losses, damages, fines, penalties, claims and third party claims, and
expenses (including Landlord's personnel and overhead costs and attorneys' fees
and other costs incurred in connection with such claims regardless of whether
claims involve litigation), and any other liability and/or clean-up costs in any
way related to, or arising out of, the existence of any hazardous substance or
material as defined under any applicable law or regulation where such substance
was deposited onto the Premises, or in proximity thereto, by Tenant, or by
Tenant's officers, agents, employees, customers, clients, agents, contractors,
or other third parties acting at the request of, or for the benefit of, Tenant.
Landlord shall not be liable for interference with light, air or view or for any
latent defect in the Premises. Tenant shall promptly notify Landlord of
casualties or accidents occurring in or about the Premises. Notwithstanding the
foregoing, if losses, liabilities, damages, liens, costs and expenses so arising
are caused by the concurrent negligence of both Landlord and Tenant, their
employees, agents, invitees and licensees, Tenant shall indemnify Landlord only
to the extent of Tenant's own negligence or that of its officers, agents,
employees, guests or invitees. This provision shall survive termination or
expiration of this Lease. Landlord shall indemnify, defend and hold Tenant, its
officers, agents, employees, and contractors harmless from all losses, damages,
fines, penalties, claims, liabilities and expenses (including Landlord's
personnel and overhead costs and attorneys' fees and other costs incurred in
connection with such claims regardless of whether claims involve litigation)
resulting from any actual or alleged injury to any person or from any actual or
alleged loss of, or damage to, any property attributable to Landlord's
ownership, operation or occupation of the Premises or caused by, or resulting
from, any act or omission of Landlord or any licensee, assignee, or
concessionaire, or of any officer, agent, employee, guest or invitee of any such
person in or about the Premises, or Landlord's breach of its obligations under
this Lease. Landlord shall also pay for, indemnify, defend and hold Tenant, and
its officers, partners, members, agents, employees, and contractors harmless
from all losses, damages, fines, penalties, claims and third party claims, and
expenses (including Tenant's personnel and overhead costs and attorneys' fees
and other costs incurred in connection with such claims regardless of whether
claims involve litigation), and any other liability and/or clean-up costs in any
way related to, or arising out of, the existence of any hazardous substance or
material as defined under any applicable law or regulation where such substance
was deposited onto the Premises, or in proximity thereto, by Landlord, or by
Landlord's officers, agents, employees, customers, clients, agents, contractors,
or other third parties acting at the request of, or for the benefit of,
Landlord. Tenant shall not be liable for interference with light, air or view or
for any latent defect in the Premises. Landlord shall promptly notify Tenant of
casualties or accidents occurring in or about the Premises. Notwithstanding the
foregoing, if losses, liabilities,
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damages, liens, costs and expenses so arising are caused by the concurrent
negligence of both Landlord and Tenant, their employees, agents, invitees and
licensees, Landlord shall indemnify Tenant only to the extent of Landlord's own
negligence or that of its officers, agents, employees, guests or invitees. This
provision shall survive termination or expiration of this Lease.
10. USE
10.1 USE. The Premises shall be used for the assembly of circuit
boards, and office use related thereto. Tenant shall, at Tenant's expense,
comply promptly with all applicable statutes, ordinances, rules, regulations,
orders and requirements in effect during the term of the Lease. Tenant shall not
use or permit the use of the Premises in any manner that will tend to create
waste or a nuisance.
10.2 CONDITION OF PREMISES. Subject to Article 2.2, Tenant hereby
accepts the Premises in the condition which exists as of the Commencement Date,
subject to all applicable zoning, municipal, county and state laws, ordinances
and regulations governing and regulating the use of the Premises. Tenant
acknowledges that neither Landlord nor Landlord's agents have made any
representation or warranty as to the suitability of the Premises for the conduct
of the business intended by Tenant.
10.3 STORAGE OF HAZARDOUS MATERIALS. Tenant shall not use or store
on the Premises any material defined under any applicable law or regulation as a
hazardous substance or material except to the extent permitted under applicable
laws and regulations. All such hazardous substances and materials shall be
lawfully removed from the Premises at the expiration or earlier termination of
the lease term.
11. MAINTENANCE, REPAIRS AND ALTERATIONS
11.1 LANDLORD'S OBLIGATIONS. Landlord shall be responsible for
maintaining in good repair the structural portions of the Premises, and for
replacement of the roof when and if necessary.
11.2 TENANT'S OBLIGATION. Tenant shall, at its sole cost and
expense, and except as otherwise set forth in Article 11.1, keep and maintain
the interior and exterior of the Premises and every part thereof including, but
not limited to, windows, doors, and mechanical, plumbing and electrical systems,
in good and sanitary order, condition and repair. Tenant acknowledges that
maintenance and repair of the exterior of the Premises, except in the
circumstance of an emergency, will be performed by Landlord or Landlord's
agents, and then charged back to Tenant as Additional Rent as provided in
Article 4.
11.3 ALTERATIONS AND ADDITIONS
(a) Tenant shall not make any alterations, additions or
improvements in or to the Premises with a cost in excess of
Five Thousand and 00/100 Dollars ($5,000.00), without first
submitting to Landlord professionally prepared plans and
specifications for such work, and obtaining Landlord's prior
written approval which approval shall not be unreasonably
withheld. Tenant covenants that it will
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cause all such alterations, additions and improvements to be
performed at Tenant's sole cost and expense by a contractor
approved by Landlord, which approval shall not be unreasonably
withheld, and in a manner which (i) is consistent with the
Landlord approved plans, (ii) is in conformity with commercial
standards, (iii) includes acceptable insurance coverage for
Landlord's benefit, and (iv) does not affect the structural
integrity of the Premises. Tenant shall secure all
governmental permits and approvals, as well as comply with all
other applicable governmental requirements and restrictions.
Tenant shall indemnify, defend and hold Landlord harmless from
and against all losses, liabilities, damages, liens, costs,
penalties and expenses (including attorneys' fees, but without
waiver of the duty to hold harmless) arising from or out of
the performance of such alterations, additions and
improvements. Tenant shall remove all such improvements on the
termination of this Lease unless otherwise directed by
Landlord, and Tenant shall, at its sole cost and expense,
repair any damage to the premises caused by such removal.
(b) Before commencing any work relating to alterations,
additions and improvements affecting the Premises, Tenant
shall notify Landlord in writing of the expected date of
commencement. Landlord shall then have the right from time to
time to post and maintain on the Premises such notices as
Landlord reasonably deems necessary to protect the Premises
and Landlord from mechanics' liens, materialmen's liens or any
other liens. In any event, Tenant shall pay, when due, all
claims for labor or materials furnished to or for Tenant at or
for use in the Premises. Tenant shall not permit any
mechanics' or materialmen's liens to be levied against the
Premises for any labor or material furnished to Tenant or
claimed to have been furnished to Tenant or to Tenant's agents
or contractors in connection with work of any character
performed or claimed to have been performed on the Premises or
by or at the direction of Tenant.
11.4 SURRENDER. On the last day of the term hereof, or on any
sooner termination, Tenant shall surrender the Premises to Landlord in good
condition, broom clean, ordinary wear and tear excepted. Tenant shall repair any
damage to the Premises occasioned by Tenant's use thereof, or by the removal of
Tenant's trade fixtures, furnishings and equipment pursuant to Article 11.3(a)
which repair shall include the patching and filling of holes and repair of
structural damage. Tenant shall indemnify the Landlord against any loss or
liability resulting from delay by Tenant in so surrendering the Premises,
including without limitation any claims made by any succeeding Tenant founded on
such delay.
11.5 LANDLORD'S RIGHTS. If Tenant fails to perform Tenant's
obligations under Article 11.2, Landlord shall have the option, but not the
obligation, to enter the premises after five (5) days prior written notice to
Tenant to make the repairs. The cost of the work, together with interest thereon
at the rate of eighteen percent (18%) per annum, shall be immediately due and
payable as additional rent.
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12. DAMAGE OR DESTRUCTION
12.1 PARTIAL DESTRUCTION. If the Premises are rendered partially
untenantable by fire or other insured casualty, (or if the Premises are declared
unsafe or unfit for occupancy by any authorized public authority for any reason,
other than Tenant's act, use or occupancy, which declaration requires repairs to
the Premises), and if the damage is repairable within sixty (60) days from the
date of the occurrence (with the repair work and related preparations to be done
during regular working hours on regular work days), Landlord shall repair the
Premises with due diligence, to the extent of available insurance proceeds and
the monthly rent shall be abated in the proportion that the untenantable portion
of the Premises bears to the entire Premises for the period from the date of the
casualty to the completion of the repairs, unless the casualty results from
Tenant's negligence or intentional conduct or its breach of the terms of this
Lease.
12.2 TOTAL DESTRUCTION. If the Premises are completely destroyed by
fire or other casualty, or if they are damaged by an uninsured casualty, or by
insured casualty to such an extent that the damage cannot be repaired within
sixty (60) days of the occurrence, Landlord shall have the option to either
restore the Premises or terminate this Lease. If this Article becomes
applicable, Landlord shall advise Tenant within sixty (60) days after such
casualty whether Landlord elects to restore the Premises or to terminate the
Lease. If Landlord elects to restore the Premises, it shall commence and
prosecute the restoration work with diligence. For the period from the date of
the casualty until completion of the repairs (or the date of termination of this
Lease, if Landlord elects not to restore the Premises), the monthly rent shall
be abated in the same proportion that the untenantable portion of the Premises
bears to the entire Premises, unless the casualty results from Tenant's
negligence or intentional conduct or its breach of its obligations under this
Lease.
12.3 DAMAGE NEAR END OF TERM. If the Premises are partially
destroyed or damaged during the last twenty-four (24) months of the term of this
Lease, Landlord may, at Landlord's option, cancel and terminate this Lease as of
the date of occurrence of such damage by giving written notice to Tenant of
Landlord's election to do so within sixty (60) days after the date of occurrence
of such damage. For the period from the date of the casualty until the date of
termination of this Lease under this Article 12.3, the monthly rent shall be
abated in the same proportion that the untenantable portion of the Premises
bears to the entire Premises, unless the casualty results from Tenant's
negligent or intentional conduct or its breach of its obligations under this
Lease.
12.4 MISCELLANEOUS. In the event of any dispute between Landlord
and Tenant relative to the provisions of this Article 12, each party may select
an arbitrator, the two arbitrators so selected shall select a third arbitrator,
and the third arbitrator so selected shall hear and determine the controversy.
The arbitrator's decision shall be final and binding on both Landlord and
Tenant. Each party shall pay one-half (1/2) of the cost of the arbitration
except that the parties shall pay their own attorney's fees. Landlord shall not
be required to repair any property installed in the Premises by Tenant. Tenant
waives any right under applicable laws inconsistent with the terms of this
Article 12.
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13. ASSIGNMENT AND SUBLETTING
13.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not voluntarily or
by operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Tenant's interest in this Lease or in the Premises
without Landlord's prior written consent which consent shall not be unreasonably
withheld. Landlord shall have the right to condition approval of a sublease of
some or all of the Premises on the written agreement of Tenant and sub-lessee
that any rent which sub-lessee is obligated to pay in excess of the scheduled
per square foot rates listed in Section 4.1 herein shall be paid directly to
Landlord. Any attempted assignment, transfer, mortgage, encumbrance, or
subletting without such consent shall be void and shall constitute a breach of
this Lease. Any transfer of Tenant's interest in this Lease or in the Premises
from Tenant by merger, consolidation, or liquidation, by any subsequent change
in the ownership of fifty percent (50%), or more, of the capital stock of
Tenant, or by a transfer of more than a fifty percent (50%) interest in a
partnership or limited partnership, shall be prohibited unless the transferee
will conduct the same business and Landlord reasonably and in good faith
determines that the credit worthiness of the transferee is at least as good as
the Tenant's.
13.2 NO RELEASE OF TENANT. Unless agreed to in writing, Landlord's
consent to an assignment or sublease by Tenant, or Landlord's consent to an
assignment or sublease by an assignee or sub-tenant or remote assignee or
sub-tenant, shall not release Tenant of Tenant's obligation to pay the rent and
to perform all other obligations to be performed by Tenant during the term of
this Lease. The acceptance of rent by Landlord from any third party shall not be
deemed to be a waiver by Landlord of any provision herein. Consent to one
assignment or sublease shall not be deemed consent to any subsequent assignment
or sublease.
13.3 ATTORNEY'S FEES. In the event Landlord shall consent to a
sublease or assignment, Tenant shall pay Landlord's reasonable attorney's fees
incurred in connection with giving such consent, including the fees incurred in
investigating the facts and preparing reasonably necessary documentation.
14. RIGHT TO INSPECT. Landlord shall with reasonable written notice to
Tenant have the right to enter and inspect the Premises for any reasonable
purpose whatsoever, including the right to show the Premises to prospective
purchasers or tenants, to post notices of non-responsibility, and to repair the
Premises and any portion of the Premises and may for that purpose erect
scaffolding and other necessary structures where reasonably required by the
character of the work to be performed. Notwithstanding the foregoing, Landlord
shall only be obligated to provide reasonable verbal notice during the last 120
days of the Lease term if the purpose of the inspection is to show the Premises
to prospective purchasers or tenants.
15. DEFAULT REMEDIES
15.1 DEFAULTS. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by Tenant:
(a) The vacation or abandonment of the Premises by Tenant.
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(b) The failure of Tenant to timely pay rent or any other
payment required under this Lease where such failure has continued for
a period of ten (10) days after written notice from Landlord to Tenant.
(c) The failure of Tenant to observe or perform any of
the covenants, conditions or provisions of this Lease to be observed or
performed by Tenant where such failure shall continue for a period of
thirty (30) days after written notice from Landlord. If the nature of
Tenant's default is such that more than thirty (30) days are reasonably
required for its cure, then Tenant shall not be deemed to be in default
if Tenant commenced such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion.
(d) The (i) making by Tenant of any general arrangement
for the benefit of creditors; (ii) filing by or against Tenant of a
petition to have Tenant adjudged bankrupt, or a petition for
reorganization or arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against Tenant, the same is
dismissed within sixty (60) days); (iii) appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within thirty (30) days; or (iv)
attachment, execution or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where such seizure is not discharged within thirty (30) days.
(e) The discovery by Landlord that any financial
statement given to Landlord by Tenant, any assignee of Tenant, any
subtenant of Tenant, any successor in interest of Tenant, or any
assignee of Tenant's obligation hereunder, was materially false.
15.2 REMEDIES. In the event of a default or breach by Tenant,
Landlord may at any time thereafter, with written notice and demand, and without
limiting Landlord in the exercise of any other right or remedy which Landlord
may have by reason of such default or breach, pursue any of the following
remedies:
(a) Terminate the Lease and repossess the Premises in any
manner permitted by law.
(b) Repossess the Premises without terminating the Lease.
(c) Maintain Tenant's right to possession, in which case
this Lease shall continue in effect whether or not Tenant shall have
abandoned the Premises. In such event, Landlord shall be entitled to
enforce all of Landlord's rights and remedies under this Lease,
including the right to recover the rent as it becomes due hereunder.
(d) Pursue any other remedy now or hereafter available to
Landlord under the law or judicial decisions of the State of
Washington, which remedy shall include the right to not only collect
rent and other sums due and owing under this Lease, but also all other
damages incurred as a result of the default by Tenant including, but
not limited to, unpaid
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EXHIBIT 10.29
Lease obligations which become due and owing less any sums received
from a replacement tenant, the cost to restore or repair the Premises
as required by the Lease if Tenant has failed to do so, and a pro-rata
portion of any commission which is paid in obtaining a replacement
tenant.
15.3 DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event later than thirty (30) days after Landlord's receipt of a
written notice from Tenant detailing the obligations Tenant maintains Landlord
has failed to perform. The nature of Landlord's obligation is such that more
than thirty (30) days are required for performance, then Landlord shall not be
in default if Landlord commences performance within the thirty (30) day period
and thereafter diligently prosecutes the same to completion. In the event of
Landlord's default, Tenant may pursue any remedy now or hereafter available to
Tenant under the law or judicial decisions of the State of Washington.
16. REMOVAL OF PROPERTY. In the event of any repossession of the Premises,
the Landlord shall have the right, but not the obligation, to remove from the
Premises all personal property located therein, and may store the same in any
place selected by Landlord, including but not limited to a self-storage
facility, at the expense of the Tenant, with the right to sell such stored
property, with prior written notice to Tenant, after it has been stored for a
period of thirty (30) days or more. The proceeds of such sale shall be applied
first to the costs of such sale, second to the payment of charges for removal
and storage, and third to the payment of any other sums of money which may then
be due from Tenant to Landlord, or which may become due as a result of any
breach of this Lease or default by Tenant. The balance of the sale proceeds, if
any, shall be paid to Tenant.
17. HOLD OVER TENANCY. If, without execution of a new Lease or written
extension, Tenant continues to occupy the Premises after the expiration of the
term of this Lease, Tenant shall be deemed to be occupying the Premises subject
to all of the terms and conditions of this Lease, except (i) the term shall be
from month-to-month, which tenancy may be terminated as provided by law, and
(ii) the minimum monthly rent shall be in the amount of One Hundred Twenty-Five
Percent of the highest monthly amount which was paid during the expired lease
term.
18. CONDEMNATION
18.1 TERMINATION BY CONDEMNATION. If the Premises or any portion
thereof are taken under the threat of the exercise of the power of eminent
domain (all of which is herein referred to as "condemnation"), or under the
threat of condemnation, this Lease shall terminate as to the part so taken as of
the date the condemning authority takes title or possession, whichever occurs
first. If any part of the Premises is taken by condemnation, Landlord may
terminate this Lease as of the date the condemning authority takes possession by
notice in writing of such election within twenty (20) days after Landlord shall
have notified Tenant of the taking.
18.2 PARTIAL CONDEMNATION. If this Lease is not terminated by
Landlord, then it shall remain in full force and effect as to the portion of the
Premises remaining, except that the
Landlord's initials:___ Page 11 of 17 Tenant's Initials:_
EXHIBIT 10.29
minimum rent payable shall be reduced in the same proportion to that the area of
the Premises taken bears to the total area of the Premises prior to the taking.
18.3 DAMAGES. All awards for the taking of any part of the Premises
or any payment made under the threat of the exercise of power of eminent domain
shall be the property of Landlord, whether made as compensation for diminution
of value of the leasehold or for the taking of the fee or as severance damages;
provided, however, that Tenant shall be entitled to any award made for loss of,
or damage to, Tenant's trade fixtures and removable personal property.
19. LIENS. Tenant shall keep the Premises free from any liens arising out
of any work performed, materials furnished to, or obligations incurred by
Tenant, and shall hold Landlord harmless against the same.
20. SALE OF PREMISES BY LANDLORD. In the event of any sale of the Premises,
Landlord shall, after purchaser has in writing assumed any and all Landlord's
covenants and obligations under this Lease, be relieved of all liability under
any and all of its covenants and obligations of this Lease arising out of any
act, occurrence or omission occurring after the consummation of such sale; and,
the purchaser, at such sale or any subsequent seller of the Premises, shall in
writing assume any and all Landlord's covenants and obligation under this Lease.
21. SUBORDINATION. This Lease and all interest of Tenant hereunder is
subject to and is hereby subordinated to all present and future mortgages or
deeds of trust affecting the Premises. Tenant agrees to execute, at no expense
to the Landlord, any reasonable instrument which may be deemed necessary or
desirable by the Landlord to further effect the subordination of this Lease to
any mortgage or deed of trust. Tenant's refusal to execute a subordination
agreement shall be deemed a breach of this Lease by Tenant. In the event of such
a breach, Tenant shall pay to Landlord all costs incurred by Landlord in
Landlord's effort to obtain compliance, including attorney's fees and all other
damages resulting from the breach. Upon a foreclosure and a demand by Landlord's
successor, Tenant shall attorn to and recognize such successor as Landlord under
this Lease.
22. SIGNS. Tenant, with the prior consent of Landlord which consent shall
not be unreasonably withheld, shall be entitled to install, at Tenant's sole
cost and expense, the maximum signage allowed under applicable law.
23. OFFSET STATEMENT
(a) Tenant shall within ten (10) days of receipt of a written
request from Landlord execute, acknowledge and deliver to Landlord a
statement in writing certifying (i) that this Lease is unmodified (or,
if modified, the nature of such modification) and in full force and
effect, (ii) the date to which the rent, security deposit, and other
charges are paid in advance, if any, and (iii) that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord (or
specifying such defaults, if any, which are claimed). Any such
statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of the Premises.
Landlord's initials:___ Page 12 of 17 Tenant's Initials:_
EXHIBIT 10.29
(b) Tenant's failure to deliver such statement within such time
shall be conclusive upon Tenant (i) that this Lease is in full force
and effect, without modification except as may be represented by
Landlord, (ii) that there are no uncured defaults in Landlord's
performance, and (iii) that not more than one (1) month's rent has been
paid in advance.
(c) If Landlord desires to finance or refinance the Premises,
Tenant shall deliver to any lender designated by Landlord such
financial statements of Tenant as may be reasonably required by such
lender. Such statements shall include the past three (3) years'
financial statements of Tenant. All such financial statements shall be
received by Landlord in confidence and shall be used only for the
purposes herein set forth.
Tenant's unreasonable refusal to comply with any reasonable request as provided
in this Article shall be deemed a breach of this Lease by Tenant. In the event
of such a breach, Tenant shall pay to Landlord al costs incurred by Landlord in
Landlord's effort to obtain compliance, including attorney's fees, and all other
damages resulting from the breach.
24. INTEREST ON PAST DUE OBLIGATIONS. Except as expressly herein provided,
all lease obligations in arrears shall bear interest at twelve (12%) percent per
annum from the date due.
25. ENTIRE AGREEMENT. It is expressly understood and agreed by Landlord and
Tenant that there are no promises, agreements, conditions, understandings,
inducements, warranties, or representations, oral or written, expressed or
implied, between them other than as herein set forth and that this Lease shall
not be modified in any manner except by an instrument in writing and executed by
the parties. Failure to exercise any right in one (1) or more instances shall
not be construed as a waiver of the right to strict performance.
26. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive, but shall wherever possible, be cumulative with all other remedies at
law or in equity.
27. COVENANTS AND CONDITIONS. Each provision of this Lease to be performed
by Tenant or Landlord shall be deemed both a covenant and a condition.
28. SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
29. ATTORNEY'S FEES. In the event either party requires the services of any
attorney in connection with the enforcement of the terms of this Lease, or in
the event suit is brought for the recovery of any rent due under this Lease, or
for the breach of any covenant or condition of this Lease for the restitution of
said Premises to Landlord, and/or eviction of Tenant, during said term or after
the expiration thereof, the prevailing party will be entitled to a reasonable
sum for attorney's fees and court costs.
30. NOTICES. All notices required under this Lease shall be in writing.
Notices shall either be personally served, or delivered by both certified and
regular mail to the addresses set forth below. A notice, if sent by U.S. mail,
shall be deemed to have been received three (3) days after it is deposited for
delivery unless proof of earlier delivery by certified mail receipt exists.
Landlord's initials:___ Page 13 of 17 Tenant's Initials:_
EXHIBIT 10.29
Address of Landlord:
00 Xxxxxxxx Xx. # 00
Xxxxxxx, XX 00000
Address of Tenant:
0000 000xx Xxxxxx X.X.
Xxxxxxx, XX 00000
31. RECORDATION. Either Landlord or Tenant may record a memorandum of this
Lease.
32. BINDING EFFECT. Subject to the provisions herein, this Lease shall be
binding upon and inure to the benefit of the parties, their successors and
assigns.
33. TIME IS OF THE ESSENCE OF THIS AGREEMENT
LANDLORD
XXXXXXXXXX-XXXXX, L.L.C., a WA TENANT
Limited Liability Company
by: KPM AND ASSOCIATES, a WA Gen. ETMA CORPORATION, a Washington
Ptshp., member Corporation
by: /s/ Xxx Xxxxx Xxxxxxxxxxx by: /s/ Xxxxxxx Xxxxxxxx
-------------------------------- ---------------------------------
XXX XXXXX XXXXXXXXXXX XXXXXXX XXXXXXXX, Vice Pres.
managing partner Dated: 1/17/01
Dated: 1/22/01
and by: XXXXXXXXXX INVESTMENT COMPANY, a
WA Gen. Ptshp., member
by: /s/ Xxxxxxxx X. Xxxxxxxxxx
------------------------------------
XXXXXXXX X. XXXXXXXXXX
managing partner
Dated: 1/18/01
Landlord's initials:___ Page 14 of 17 Tenant's Initials:_
EXHIBIT 10.29
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
On this 22nd day of Jan. 2001, personally appeared before me, XXX XXXXX
XXXXXXXXXXX, to me known to be the managing partner of KPM AND ASSOCIATES, a WA
Gen. Ptshp., a member of XXXXXXXXXX-XXXXX, L.L.C., a Washington Limited
Liability Company that executed the within and foregoing instrument, and
acknowledged the same to be the free and voluntary act and deed of same
corporation, for the uses and purposes therein mentioned, and on oath stated
that he was authorized to execute said instrument.
GIVEN me hand and official seal this 22 day of Jan , 2001.
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Print Name Xxxxx X. Xxxxxxx
NOTARY PUBLIC in and for the State of
Washington, residing at Seattle
My commission expires 8/3/04
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
On this 18th day of January 2001, personally appeared before me, XXXXXXXX X.
XXXXXXXXXX to me known to be the managing partner of XXXXXXXXXX INVESTMENT
COMPANY, a member of XXXXXXXXXX-XXXXX, L.L.C., a Washington Limited Liability
Company that executed the within and foregoing instrument, and acknowledged the
same to be the free and voluntary act and deed of same corporation, for the uses
and purposes therein mentioned, and on oath stated that he was authorized to
execute said instrument.
GIVEN me hand and official seal this 18th day of January , 2001.
/s/ Xxxx X. Xxx
-----------------------------------------------
Print Name Xxxx X. Xxx
NOTARY PUBLIC in and for the State of
Washington, residing at Winthrop
My commission expires 2-6-04
Landlord's initials:___ Page 15 of 17 Tenant's Initials:_
EXHIBIT 10.29
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
On this 17th day of January 2001, personally appeared before me XXXXXXX XXXXXXXX
to me known to be the Vice President of ETMA Corporation, a Washington
Corporation that executed the within and foregoing instrument, and acknowledged
the same to be the free and voluntary act and deed of same corporation, for the
uses and purposes therein mentioned, and on oath stated that he was authorized
to execute said instrument.
GIVEN me hand and official seal this 17th day of JANUARY, 2001.
/s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Print Name Xxxxxxx Xxxxxxx
NOTARY PUBLIC in and for the State of
Washington, residing at Redmond
My commission expires 11-15-03
Landlord's initials:___ Page 16 of 17 Tenant's Initials:_
EXHIBIT 1
That portion of Xxxx 0 xxx 0, Xxxxxxx Xxxx Xxxxxxxx Xxxxxx, according to the
plat thereof recorded in Volume 135 of Plats, Pages 16 and 17, in King County,
Washington, more particularly described as follows:
Beginning at the southeast corner of said Lot 7;
thence along the east line of said Lot 7 north 01 degrees 17'45" east 278.31
feet to the TRUE POINT OF BEGINNING;
thence north 89 degrees 33'45" west 268.09 feet;
thence north 00 degrees 34'06" east 33.24 feet to the beginning of a tangent
curve concave to the southwest having a radius of 150.00 feet;
thence northerly and northwesterly 132.32 feet along said curve through a
central angle of 50 degrees 32'38";
thence along a non-tangent line to said curve north 9 degrees 40'54" east 198.39
feet;
thence south 89 degrees 33'45" east 342.46 feet to a point on the east line of
said Lot 6 and the beginning of a non-tangent curve concave to the east having a
radius of 603.14 feet (the radius point bears south 64 degrees 33'46" east from
said beginning);
thence southwesterly and southerly 254.13 feet along the easterly line of said
Lot 6 and said curve through a central angle of 24 degrees 08'29";
thence continuing along said easterly line south 01 degrees 17'46" west 98.19
feet to the TRUE POINT OF BEGINNING;
(ALSO KNOWN AS Lot 6, City of Xxxxxxx Lot Line Adjustment Number LLR 89-7 as
recorded under Recording Number 9207069007).
