Washington-Kent Lease - Seattle Box Co. d/b/a Seattle-Tacoma Box Co. and Aladdin Manufacturing Co.
ORIGINAL
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is entered into this 10/th/ day of
Dec, 1999, between Seattle Box Company, a Washington corporation doing
business as Seattle-Tacoma Box Company ("Landlord"), and Aladdin
Manufacturing Corp., a Delaware corporation ("Tenant"). Landlord and
Tenant agree as follows:
1. LEASE SUMMARY.
a. The Premises. The Premises (the "Premises") consist of that
certain parcel of real property legally described on Exhibit A
attached hereto (the "Real Property"), together with that certain
portion hereinafter described of a building ("the Building") to
be constructed by Landlord on the Real Property. The Building
will have a footprint of approximately 120,950 square feet, of
which the following shall be included in the Premises: (i)
approximately 105,134 square feet of first floor warehouse space;
(ii) approximately 4716 square feet of first floor office space
(divided into two office areas of 4200 square feet and 516 square
feet, respectively); and (iii) approximately 2500 square feet of
mezzanine office space. The Building will be constructed with
access to a railroad spur, which shall be used by Tenant and
Landlord jointly. Tenant shall have exclusive use of one rail
door in the Building. The Real Property and the Building,
including the delineation of the Premises, and the delineation of
the Reserved Space (hereinafter defined) are depicted on the site
plan attached hereto as Exhibit B.
b. The Reserved Space. The Premises do not include, and
Landlord reserves, approximately 11,100 square feet of the
Building located in the southeast corner thereof. Landlord's use
of the railroad spur will include use in connection with certain
other real property owned by Landlord and located adjacent and to
the south of the Real Property. Landlord also reserves the right
to vehicular and pedestrian access to the Reserved Space
(hereinafter defined) across that portion of the Real Property
adjacent and to the south of the portion of the Building reserved
by Landlord. The approximately 11,100 square feet of the Building
reserved by the Landlord, the use jointly with Tenant of the rail
spur adjacent thereto, and the right to vehicular and pedestrian
access across that portion of the Real Property adjacent and to
the south of the portion of the Building reserved by Landlord are
hereinafter collectively referred to as the "Reserved Space".
Landlord may use the Reserved Space for its own purposes in any
manner that does not unreasonably interfere with Tenant's carpet
warehouse and distribution business on the Premises, or may lease
the Reserved Space to any third party; provided however that
Tenant shall have the right of first refusal to lease the
Reserved Space as further provided in Section 1(g) below.
c. Lease Commencement Date. The Lease shall commence on the
date provided for in Section 3(d) below. After delivery of
occupancy of the Premises to Tenant, Tenant and Landlord shall
confirm the Commencement Date in writing.
d. Lease Termination Date. The Lease shall terminate at
midnight on the last day of the 122/nd/ month of the lease
calculated as set forth in this paragraph (the "Termination
Date"). If the Commencement Date occurs on the first day of a
month, that month shall be the first month of the lease term. If
the Commencement Date occurs on any other day, the first month of
the lease term shall be the following calendar month.
e. Extension Options. Tenant shall have two options to extend
the term of this Lease for five years per option. Herein the
initial one hundred and twenty-two month term of this Lease shall
be referred to as the "Initial Term", the first five year
extension shall be referred to as the "First Extended Term", and
the second five year extension shall be referred to as the
"Second Extended Term." If Tenant wishes to exercise either of
its options to extend the term, Tenant shall notify Landlord in
writing of such exercise no earlier than 365 days and no later
than 180 days prior to the last day of the preceding term hereof
(the "Extension Notice Period"); provided however that Tenant
shall not be entitled to exercise its extension option if Tenant
is in default
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under this Lease at any time during the Extension Notice Period.
During either of the Extended Terms, all terms and conditions of
this Lease will remain in full force and effect, except that
Tenant shall not be entitled to any tenant improvement or similar
allowances for either such Extended Terms.
f. Base Rent.
(i) Initial Term Base Rent. The monthly base rent during
the Initial Term shall be as follows:
Months 1 through 2: $.00
Months 3 through 36: $41,136 per month
Months 37 through 60: $42,951 per month
Months 61 through 96: $45,562 per month
Months 97 through 122: $50,984 per month
(ii) First Extended Term Base Rent. If Tenant exercises
it's first renewal option, monthly base rent during the
First Extended Term shall be as follows:
Months 123 through 146: "Market Rent" (defined below) as
of the beginning of month 123, but
in no event less than the base
rent for the preceding period.
Months 147 through 170: "Market Rent" as of the beginning
of month 147, but in no event less
than the base rent for the
preceding period.
Months 171 through 182: "Market Rent" as of the beginning
of month 171, but in no event less
than the base rent for the
preceding period.
(iii) Second Extended Term Base Rent. If Tenant exercises
it's second renewal option, monthly base rent during the
Second Extended Term shall be as follows:
Months 183 through 206: "Market Rent" as of the beginning
of month 183, but in no event less
than the base rent for the
preceding period.
Months 207 through 230: "Market Rent" as of the beginning
of month 207, but in no event less
than the base rent for the
preceding period.
Months 232 through 242: "Market Rent" as of the beginning
of month 231, but in no event less
than the base rent for the
preceding period.
(iv) Definition of "Market Rent". The term "Market Rent" as
used in this Lease shall mean the fair market rent for
premises of comparable size, location and type as the
Premises, with rail spur access, in the Kent, Washington
area. In determining the "Market Rent" as of any date during
the First Extended Term the fact that Tenant has an
additional five year renewal option under this Lease shall
also be taken into consideration.
(v) Method of Determining Base Rental Adjustment Amount.
The first day of months 123,147,171,183,207 and 231 of the
term of this Lease are hereinafter referred to as the "Base
Rental Adjustment Dates." If Landlord and Tenant have not
agreed at least 150 days in advance of any Base Rental
Adjustment Date as to amount of the upcoming base rental
adjustment, then the base rental adjustment shall be
determined as follows:
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(1) Either Landlord or Tenant may appoint an
appraiser to provide a written opinion (with
supporting information) as to the Market
Rent for the Premises as of the upcoming
Base Rental Adjustment Date. The party
appointing the appraiser shall notify the
other party of such appointment within three
business days of such appointment. The other
party may then appoint a second appraiser to
provide a written opinion (with supporting
information) as to the Market Rent for the
Premises as of the upcoming Base Rental
Adjustment Date. Each appraiser appointed
shall be a professional real estate
appraiser active during the ten-year period
immediately prior to his or her appointment
in the appraisal of industrial and warehouse
properties in the greater Seattle area.
(2) The two appraisers so appointed shall
within 30 days of the date of the
appointment of the last appointed appraiser
agree upon and appoint a third appraiser who
shall be qualified under the same criteria
set forth hereinabove to qualify the initial
two appraisers.
(3) The three appraisers shall within sixty
days of the appointment of the third
appraiser give a written opinion (with
supporting information) as to the Market
Rent for the Premises, using the criteria
set forth above, and notify Landlord and
Tenant thereof.
(4) If any two of the three appraisers agree
as to the Market Rent for the Premises, then
their opinion shall be binding upon Landlord
and Tenant. If no two of the three
appraisers agree as to the Market Rent for
the Premises, then the base rent shall be
adjusted to an amount which is the average
of the opinions of the three appraisers,
ignoring for the purpose of such averaging
any portion of the high and low opinions
which is more than 10 percent in excess of
or less than the middle opinion. If either
Landlord or Tenant fails to appoint an
appraiser within the time period set forth
above, the appraiser appointed by the other
shall give his or her opinion of the Market
Rent for the Premises, shall notify Landlord
and Tenant thereof, and such appraiser's
opinion shall be binding upon Landlord and
Tenant. If the two appraisers appointed by
Landlord and Tenant fail to agree upon and
appoint a third appraiser, both appraisers
shall be dismissed and the matter shall be
forthwith submitted to binding arbitration
with the American Arbitration Association
pursuant to such rules and procedures as
have then been promulgated by the American
Arbitration Association.
(5) If it using these procedures the Market
Rent for the Premises has not been
determined by the next upcoming Base Rental
Adjustment Date, then Tenant shall continue
to pay the base rent to Landlord at the
previous rate, and after the Market Rent is
determined Tenant shall pay to Landlord
within 15 days the difference between the
base rent actually paid from the Base Rental
Adjustment Date to the date that the Market
Rent is determined, together with interest
thereon at the rate of 12 percent per annum.
(6) Each party shall pay the cost of the
appraiser appointed by its, and the cost of
the third appraiser and of the arbitration
if any shall be paid by Landlord and Tenant
equally.
g. Right to Lease Reserved Space. If Landlord
elects to lease or rent the Reserved Space to any
third party which is not an affiliate of Landlord,
Landlord shall first offer in writing to add the
Reserved Space to this Lease. Tenant shall then have
fifteen (15) days to notify Landlord in writing
whether Tenant wishes to accept the offer to add the
Reserved Space to this Lease. If Tenant accepts
Landlord's offer to add the Reserved Space to this
Lease, then within fifteen (15) days following
Tenant's written notice to Landlord accepting
Landlord's offer, Landlord and Tenant shall execute
an amendment to this Lease adding the Reserved Space
to the Premises, increasing the base rent by ten
percent (10%), and , increasing Tenant's share of
Operating Costs of
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the Building and Taxes to one hundred percent
(100%). The amendment to this Lease shall be
effective from and after the later of the date that
Landlord vacates the Reserved Space or the date that
the parties sign the Lease amendment. All other
provisions of this Lease shall remain in full force
and effect after the Reserved Space is added to this
Lease. In the event that Tenant does not accept
Landlord's offer to add the Reserved Space to this
Lease within fifteen days (15) of Landlord's offer
to Tenant, then Landlord shall be free to lease or
rent the Reserved Space at any time to any party
without first offering the Reserved Space to Tenant.
h. Notice and Payment Addresses: Rent and any the
sums payable by Tenant to Landlord pursuant to this
Lease shall be payable at Landlord's address shown
below, or such other place designated in writing by
Landlord. All notices to be provided to Landlord or
Tenant pursuant to the terms of this Lease shall be
provided to the following addresses or to such other
addresses of which Landlord or Tenant notifies the
other in writing. Notices hereunder shall be in
writing and may be hand delivered, mailed, delivered
by overnight courier service or, if facsimile
numbers are provided below, transmitted by
facsimile. If mailed, such notices shall be sent by
certified mail, postage prepaid, return receipt
requested. The date which is two days after the date
of mailing shall be deemed to be the date on which
the notice was given. The postmark affixed to such
notice by the U.S. Post Office shall be conclusively
presumed to be the date of mailing for purposes of
this section. In the case of notices given by hand
delivery or overnight courier, such notices shall be
deemed given on the date of the actual receipt. If
transmitted by facsimile, such notices shall be
deemed given on the date of the actual receipt of a
complete, legible facsimile transmission, except
that if a facsimile transmission is received after
business hours or on a weekend or holiday, then the
notice shall be deemed given on the next business
day following the receipt of the facsimile
transmission.
Landlord: SEATTLE TACOMA BOX COMPANY
Attn: Ferdinand J. Nist, President
23400 - 71ST Place South
Kent, WA 98032
Tenant: Mohawk Carpet Corporation
Attn: S.J. Perillo, Esq.
160 South Industrial Blvd.
Calhoun, GA 30701
2. PREMISES. Landlord leases to Tenant, and Tenant
leases from Landlord the Premises upon the terms
specified in this Lease.
3. CONSTRUCTION AND COMMENCEMENT.
a. Construction of Building. Within ten (10) days
after mutual execution hereof, Landlord will provide
Tenant with a preliminary construction schedule and
a preliminary delivery date for the Premises.
Landlord shall construct the Building at Landlord's
expense, pursuant to a construction contract with a
general contractor of Landlord's choosing. The
completed Building shall be constructed
substantially in accordance with those certain plans
prepared by Rupert Engineering Inc. which are more
specifically described on the attached Exhibit F,
and those certain specifications prepared by Rupert
Engineering Inc. and dated November, 1999, which
plans and specifications have been delivered to
Tenant and reviewed and approved by Tenant. The
completed Building shall comply with the
specifications set forth on Exhibit C hereto
("Tenant's Required Specifications"). The office
portion of the completed Building shall be
constructed substantially in accordance with those
certain plans and specifications attached as Exhibit
E hereto. Landlord shall be entitled to make or
approve revisions in the plans and specifications
which are not inconsistent with Tenant's Required
Specifications and do not materially affect the size
of the Premises or Tenant's ability to use the
Premises in accordance with Tenant's intended use.
The completed Building shall include installation by
Landlord of an overhead ESFR fire sprinkler system
("Landlord's Sprinkler System"). After Tenant takes
occupancy of the Premises, Tenant may elect at
Tenant's expense to make additions or alterations
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to Landlord's Sprinkler System to comply with
Tenant's insurance and fire safety requirements,
which additions and alterations may include
converting Landlord's Sprinkler System into an in-
rack sprinkler system ("Tenant's Sprinkler System").
In the event that Tenant believes that the Premises
or Building do not comply with the terms of this
Lease, Tenant shall notify Landlord, in writing,
within 120 days of the issuance of the Certificate
of Occupancy for the Building. This notice shall
specify all claimed deficiencies of the Premises or
Building. If no such notice is given, Tenant shall
be conclusively deemed to have accepted the Premises
and Building and shall waive any claim that the
Premises or Building were not constructed to the
plans and specifications required by this Lease.
b. Tenant Improvement Allowances. The following
allowances shall be paid for by Landlord for
Tenant's desired improvements:
(i) Up to $1200 of the cost of preparation of
the preliminary space plan for Tenant's office
space, which is attached as Exhibit D hereto,
and which has been approved by both Landlord and
Tenant.
(ii) As part of the construction cost of the
Building Landlord shall pay to Tenant $21,600.00
for carpet materials to be installed in the
Premises. The carpet materials provided by
Tenant in return for the said payment by
Landlord to Tenant shall be installed by
Landlord as part of the tenant improvements and
shall be 28 ounce level loop Mohawk carpet or
approved equal or better.
(iii) An allowance of up to $5000 for the cost
of distribution of power to Tenant's cutting
machine and forklift station. Any additional
cost for such power distribution shall be paid
by Tenant to Landlord within 15 days of demand.
Any other tenant improvements desired by Tenant and
not specifically provided for herein shall be
undertaken by Tenant at Tenant sole cost and expense
after Tenant has obtained the written consent of
Landlord to all plans and specifications for such
tenant improvements.
c. Occupancy. Landlord shall provide Tenant with a
written notice (the "Occupancy Notice"), at least
fifteen days in advance, of the date that the
Building is expected to be secured (lockable doors),
illuminated with lighting sufficient for
construction activities, and ready for commencement
of the installation of Tenant's Sprinkler System
(e.g. Landlord's sprinkler system installed) and
Tenant's trade fixtures and other tenant
improvements which Tenant may wish to install in
addition to the office tenant improvements
undertaken by Landlord. Said Building status is
referred to herein as "Tenant Improveable". The
occupancy date under this paragraph may be prior to
substantial completion of the Premises or the
Building by Landlord. Tenant may thereupon enter the
Premises at its own risk, to install trade fixtures
and equipment and to make such improvements as
Tenant shall have the right to make. Tenant shall at
all times remain fully responsible for obtaining all
necessary permits for any such tenant improvements.
Tenant agrees that it will not in any way interfere
with the progress of Landlord's work on the Premises
and the Building by such entry. During the period
after which Tenant has entered the Premises and
prior to Landlord's completion of the Building and
the Premises, all terms and conditions of this Lease
shall apply. During this time period, Tenant has
Landlord's consent to bringing supplies and
inventory into the Premises to the extent that
Tenant has received any necessary permits to do so
and to the extent that such activity otherwise
complies with the limitations of this paragraph.
However, the ability to bring in such supplies and
inventory shall not be an attribute of "Tenant
Improveable" as that term is used herein.
d. Commencement Date. Tenant shall be deemed to
have taken occupancy of the Premises on the date
specified in Landlord's Occupancy Notice, which
shall be the Commencement Date of this Lease;
provided however, that no base rent shall be charged
during the first two months following the
Commencement Date. If the Commencement Date does not
fall on the first day of any calendar month, then
base rent for the third month shall be prorated
based on a thirty day month, so that Tenant shall
receive exactly two months of free base rent, and
thereafter all rent payments
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shall become due on the first day of each month. If
Landlord acts diligently to make the Premises
available to Tenant on or before June 1, 2000, or on
such other date stated in the Occupancy Notice,
neither Landlord nor any agent or employee of
Landlord shall be liable for any damage or loss due
to Landlord's inability or failure to deliver
possession of the Premises to Tenant as provided in
this Lease, except for the liquidated damages
provided below.
e. Liquidated Damages For Late Delivery: In the
event that, due to no fault of Tenant, the Building
is not Tenant Improveable on or before August 1,
2000, Landlord agrees to give Tenant two days of free
rent in the Premises for each day from August 2,
2000, until the Premises are Tenant Improveable. In
the event that, due to no fault of Tenant,
construction of the Building is not substantially
complete on or before the later of October 1, 2000,
or sixty (60) days after the Premises are Tenant
Improveable, Landlord agrees to give Tenant two days
of free rent in the Premises for each day thereafter
until construction of the Building is substantially
complete.
4. RENT. Upon mutual execution of this Lease, Tenant
shall deliver to Landlord the sum of $41,136 as
prepaid base rent, to be applied to the base rent due
for the third month of this Lease. All sums payable
to Landlord by Tenant pursuant to the provisions of
this Lease are rent to Landlord. Tenant shall pay
Landlord without notice, demand, deduction, offset,
or counterclaim, in lawful money of the United
States, the monthly base rental stated in Section
1(f) in advance on or before the first day of each
month, and any other additional payments due to
Landlord, including Operating Costs (hereinafter
defined) when required under this Lease (all of which
are collectively referred to herein as the "Rent").
If any sums payable by Tenant to Landlord under this
Lease are not received within five days following the
date due, Tenant shall pay Landlord in addition to
the amount due, for the cost of collecting and
handling such late payment, an amount equal to the
greater of $100 or five percent (5%) of the
delinquent amount. In addition, all delinquent sums
payable by Tenant to Landlord and not paid within
five days of the due date shall, at Landlord's
option, bear interest at the rate of twelve percent
(12%) per annum, or the highest rate of interest
allowable by law, whichever is less. Interest on all
delinquent amounts shall be calculated from the
original due date to the date of payment. Landlord's
acceptance of less than the full amount of any
payment due from Tenant shall not be deemed an accord
and satisfaction or compromise of such payment unless
Landlord specifically consents in writing to payment
of such lesser sum as an accord and satisfaction or
compromise of the amount which Landlord claims.
5. USES. The Premises shall be used only as a floor
covering and ancillary products warehouse storage and
distribution facility and related office (the
"Permitted Use"), and for no other business or
purpose whatsoever without the prior written consent
of Landlord, no to be unreasonably withheld or
delayed. In granting or witholding such consent,
Landlord may consider the impact of any proposed use
on the use and value of the Reserved Space. Landlord
is not aware that any zoning regulations or other
applicable laws would prohibit use of the Premises
for Tenant's intended use. Tenant shall have access
to the Premises twenty-four hours per day, 7 days per
week. No act shall be done on or around the Premises
that is unlawful or that will increase the existing
rate of insurance on the Premises or the Building, or
cause the cancellation of any insurance on the
Premises or the Building. Tenant shall not commit or
allow to be committed any waste upon the Premises, or
any public or private nuisance. Tenant shall not do
or permit anything to be done in the Premises which
will obstruct or interfere with the rights of other
tenants or occupants of the Property, or Landlord, or
their customers, clients and visitors, or injure or
annoy such persons.
6. COMPLIANCE WITH LAWS. Tenant shall not cause or
permit the Premises to be used in any way which
violates any law, ordinance, or governmental
regulation or order. Landlord shall deliver the
Premises to Tenant in a condition which complies with
all laws, rules, regulations, or orders, including
without limitation the Americans With Disabilities
Act, as applicable to the Premises on the
Commencement Date, except that Tenant shall be
responsible for bringing the Premises into compliance
with any laws which are applicable to the Premises as
a result of Tenant's particular use of the Premises,
such as modifications required by the Americans With
Disabilities Act as a
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result of Tenant opening the Premises to the public
as a place of public accommodation. If the enactment,
amendment or enforcement of any law, ordinance,
regulation or code during the Lease term requires any
changes to the Premises during the Lease term, the
Tenant shall perform all such changes at its expense
if the changes are required due to the nature of
Tenant's activities at the Premises, or due to
alterations that Tenant seeks to make to the
Premises; otherwise, Landlord shall perform all such
changes at its expense. Tenant shall be responsible
for obtaining all required permits of any nature
necessary for the operation of Tenant's business on
the Premises, or for any construction or installation
work to be undertaken by Tenant.
7. OPERATING COSTS\UTILITIES\TAXES.
a. Net Rent. Except as specifically set forth
herein, it is the intention of Landlord and Tenant
that the rental received by Landlord be net of any
taxes or expenses of any sort, except expenses for
Landlord's use of utilities and services in the
Reserved Space and Landlord's share of insurance and
other expenses related to the entire Building, based
on the percentage of the square footage of the
Building which is included in the Reserved Space,
which percentage is agreed by Landlord and Tenant to
be nine percent (9%).
b. Operating Costs of the Building. Tenant shall pay
to Landlord as additional rent ninety one percent
(91%) of all "Operating Costs of the Building" which
shall include without limitation all costs not
required to be paid directly by Tenant hereunder, of
operating, maintaining and repairing the Building
(except for exterior walls, foundation and roof as
provided below). Operating Costs of the Building
shall include without limitation the following:
insurance premiums paid by Landlord and (to the
extent used) deductibles; and amortization (in
accordance with generally accepted accounting
principles) of capital improvements that Landlord may
make in the future (except for exterior walls,
foundation and roof as provided below). Operating
Costs of the Building shall not include the cost of
maintaining and repairing, or making capital
improvements to, the Building's exterior walls,
foundation and roof, except as required to fix damage
to the Building caused by Tenant, its agents,
employees, contractors customers or invitees. In
addition, Operating Costs of the Building shall not
include: Landlord's income tax or general corporate
overhead, depreciation on the Building or equipment
therein; loan payments; real estate brokers
commissions; or any costs regarding the operation,
maintenance and repair of the Premises, the Building,
or the Property paid directly by Tenant or other
tenants in the Building. Tenant shall also pay to
Landlord as additional Rent a reasonable maintenance
and management fee in the amount of three percent
(3%) of then applicable base rent.
c. Utilities and Services. Tenant shall obtain, at
Tenant's sole expense, all utilities which Tenant may
need or desire, including, without limitation all
electrical, natural gas, water, sewer, telephone,
telecommunications services; janitorial services;
refuse removal; recycling; pest control; snow and ice
removal; fire detection and security services; and
other services which Tenant needs or desires with
respect to the Premises. Gas and electrical power
shall be separately metered. Water charges need not
be separately metered. Any utility charges which are
not separately metered and paid directly by Tenant
shall be included in the Operating Costs of the
Building in accordance with the preceding Section
7(b) of this Lease; provided however that if Landlord
can show with reasonable certainty that Tenant's use
of any utilities or services so divided exceeds
ninety-one percent (91%) of the total of such
utilities or services provided to the Building, then
Tenant shall pay a proportionally higher share of
such utilities or services so that Tenant bears the
full cost of all utilities and services used by
Tenant.
d. Repairs and Maintenance of Real Property.
Landlord shall provide the following repairs and
maintenance of the Real Property (not including the
Building): landscape maintenance, upkeep and
replacement; parking lot, road, sidewalk and driveway
patching, resurfacing and maintenance (but not
including snow and ice removal); and maintenance of
the biofilter swale and detention pond located on the
Real Property, all of which shall be collectively
referred to herein as the "Operating Costs for the
Real Property". Tenant shall pay to Landlord as
additional rent one hundred percent (100%) of the
Operating Costs for the Real Property.
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e. Taxes. Landlord shall pay all taxes and
assessments on the non Building portion of the Real
Property and on the improvements to the Real Property
(including, but not limited to, real and personal
property taxes and assessments, local improvement
district assessments and other special purpose
assessments, and taxes on rent or gross receipts)
(the "Taxes") including any Taxes resulting from a
reassessment of the Building due to a change of
ownership or otherwise. Tenant shall pay to Landlord
as additional rent ninety one percent (91%) of all
taxes and assessments on the improvements to the Real
Property (including, but not limited to, real and
personal property taxes and assessments, local
improvement district assessments and other special
purpose assessments, and taxes on rent or gross
receipts); and ninety six percent (96%) of all taxes
and assessments on the non Building portions of the
Real Property itself (including, but not limited to,
real property taxes and assessments, local
improvement district assessments and other special
purpose assessments).
f. Payment and Accounting. Landlord shall provide to
Tenant, at or before the Commencement Date, a good
faith estimate of annual Operating Costs of the
Building, Operating Costs for the Real Property and
Taxes (collectively the "Operating Costs") for the
remainder of the calendar year in which the
Commencement Date occurs. Landlord shall also provide
to Tenant, as soon as possible following the first
day of each succeeding calendar year, a good faith
estimate of the annual Operating Costs for the then-
current year. Based on such estimates, Tenant's
annual payment obligation to Landlord for the
Operating Costs shall be divided into twelve (12)
equal monthly installments. Tenant shall pay to
Landlord such monthly installments with each monthly
payment of base rent. In the event the estimated
amount of Tenant's payment obligation to Landlord for
the Operating Costs has not yet been determined at
the beginning of any calendar year, Tenant shall pay
the monthly installment in the estimated amount
determined for the preceding calendar year until the
estimate for the current calendar year has been
provided to Tenant. At such time as the estimate for
the current calendar year is received, Tenant shall
then pay any shortfall or receive a credit for any
surplus for the preceding months of the current
calendar year and shall, thereafter, make the monthly
installment payment in accordance with the current
estimate. As soon as reasonably possible following
the end of each calendar year of the Lease term,
Landlord shall determine and provide to Tenant a
statement (the "Annual Cost Statement") setting forth
the amount of Operating Costs actually incurred and
the amounts thereof paid by Tenant with respect to
such calendar year. In the event the amount payable
by Tenant for Operating Costs exceeds the sum of the
monthly installments actually paid by Tenant for such
calendar year, Tenant shall pay to Landlord the
difference within thirty (30) days following receipt
of the Annual Cost Statement. In the event the sum of
such installments paid exceeds the amount payable by
Tenant for Operating Costs, the difference shall be
applied as a credit to Tenant's obligation to pay
future Operating Costs.
8. TENANT'S TAXES. Tenant shall pay all taxes,
assessments, liens and license fees levied, assessed
or imposed by any authority having the direct or
indirect power to tax or assess any such liens, by
reason of Tenant's use of the Premises, and all taxes
on Tenant's personal property located on the
Premises.
9. ALTERATIONS. Tenant may make alterations, additions
or improvements to the Premises, ("Alterations"),
only with the prior written consent of Landlord which
will not be unreasonably withheld or delayed. Tenant
shall complete all Alterations at Tenant's expense in
compliance with all applicable laws and in accordance
with plans and specifications approved by Landlord,
using contractors approved by Landlord, and in a
manner so as to not unreasonably interfere with
Landlord or other tenants of the Building. Landlord
shall be deemed the owner of all Alterations except
for Tenant's trade fixtures, and those which Landlord
requires to be removed at the end of the Lease term.
Tenant shall remove all Alterations at the end of the
Lease term unless Landlord conditioned its consent
upon Tenant leaving a specified Alteration at the
Premises, in which case Tenant shall not remove such
Alteration. Tenant shall immediately repair any
damage to the Premises caused by removal of
Alterations and trade fixtures.
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10. REPAIRS AND MAINTENANCE. Tenant shall, at its sole expense,
maintain the Premises in good condition and promptly make
all repairs and replacements, whether structural or non-
structural, necessary to keep the Premises (including the
Real Property) safe and in good condition, including removal
of snow and ice from the roadways, parking areas, sidewalks,
and loading dock areas of the Premises, refurbishing and
repainting, carpet replacement, repair and maintenance of
air conditioning, heating, ventilation, plumbing, electrical
and lighting systems and all utilities and other systems
serving the Premises; provided however that Landlord shall
maintain and repair the Building foundation, exterior walls
(but not including exterior lighting which may be attached
to the exterior walls of the Building) Tenant shall not
damage any demising wall or disturb the structural integrity
of the Building and shall promptly repair any damage or
injury done to any such demising walls or structural
elements caused by Tenant or its employees, agents,
contractors, or invitees. If Tenant fails to maintain or
repair the Premises, Landlord may enter the Premises and
perform such repair or maintenance on behalf of Tenant. In
such case, Tenant shall be obligated to pay to Landlord
immediately upon receipt of demand for payment, as
additional Rent, all costs incurred by Landlord.
Notwithstanding anything in this Section to the contrary,
Tenant shall not be responsible for any repairs to the
Premises made necessary by the acts of Landlord or its
agents, employees, contractors or invitees therein.
11. SURRENDER. Upon expiration or early or termination of this
Lease, whether by lapse of time or otherwise, Tenant shall
promptly and peacefully surrender the Premises to Landlord
in as good condition as when received by Tenant from
Landlord or as thereafter improved, reasonable wear and tear
and insured casualty excepted. Tenant shall be entitled to
remove its trade fixtures and equipment from the Premises
upon surrender of the Premises if Tenant is not then in
default under this Lease; provided that Tenant must repair
all damage to the Premises caused by such removal. Unless
Landlord notifies Tenant otherwise in writing, Tenant shall
be required to remove Tenant's Sprinkler System at the time
of surrender of the Premises and return Landlord's Sprinkler
System to its original condition. Unless Landlord notifies
Tenant otherwise in writing, Tenant shall be required to
remove from the Premises all shelves, bins, machinery and
personal property of Tenant's, and to repair any damage
caused to the Premises by such removal.
12. ACCESS. After reasonable notice from Landlord (except in
cases of emergency, where no notice is required), Tenant
shall permit Landlord and its agents and employees to enter
the Premises at all reasonable times for the purposes of
repair or inspection. Landlord shall also be entitled to
enter the Premises as reasonably necessary for Landlord to
make alterations to the Reserved Space; provided however
that Landlord shall not unreasonably interfere with Tenant's
operations in the Premises. This Section shall not impose
any repair or other obligation upon Landlord not expressly
stated elsewhere in this Lease. After reasonable notice to
Tenant, Landlord shall have the right to enter the Premises
for the purpose of showing the Premises to prospective
purchasers or lenders at any time, and to prospective
tenants within 180 days prior to the expiration or sooner
termination of the Lease term.
13. SIGNAGE. Tenant shall obtain Landlord's written consent
before installing any signs upon the Premises which consent
shall not be unreasonably withheld or delayed. Tenant shall
install any approved signage at Tenant's sole expense and in
compliance with all applicable laws. Tenant shall not damage
or deface the Premises in installing or removing signage and
shall repair any injury or damage to the Premises caused by
such installation or removal.
14. DESTRUCTION OR CONDEMNATION.
a. Damage and Repair. If the Premises are partially damaged
but not rendered untenantable, by fire or other insured
casualty, then Landlord shall diligently restore the
Premises and the portion of the Property necessary for
Tenant's occupancy and this Lease shall not terminate;
provided, however, Tenant may terminate the Lease if
Landlord is unable to restore the Premises within six (6)
months of the casualty event. The Premises shall not be
deemed untenantable if less than twenty-five percent (25%)
of each of those areas are damaged. Notwithstanding the
foregoing, Landlord shall
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have no obligation to restore the Premises if insurance
proceeds are not available to pay the entire cost of such
restoration. If insurance proceeds are available to Landlord
but are not sufficient to pay the entire cost of
restoration, then Landlord may elect to terminate this Lease
and keep the insurance proceeds, by notifying Tenant within
sixty (60) days of the date of such casualty.
If the Premises are entirely destroyed, or partially damaged
and rendered untenantable, by fire or other casualty,
Landlord may, at its option: (a) terminate this Lease as
provided herein, or (b) restore the Premises to their
previous condition; provided, however, if such casualty
event occurs during the last 6 months of the Lease term then
either Tenant or Landlord may elect to terminate the Lease.
If, within 60 days after receipt by Landlord from Tenant of
written notice that Tenant deems the Premises or the portion
of the Property necessary for Tenant's occupancy
untenantable, Landlord fails to notify Tenant of its
election to restore those areas, or if Landlord is unable to
restore those areas within six (6) months of the date of the
casualty event, then Tenant may- elect to terminate the
Lease.
If Landlord restores the Premises under this Section
Landlord shall proceed with reasonable diligence to complete
the work, and the base rent shall be abated in the same
proportion as the untenantable portion of the Premises bears
to the whole Premises, provided that there shall be a rent
abatement only if the damage or destruction of the Premises
or the Property did not result from, or was not contributed
to directly or indirectly by the act, fault or neglect of
Tenant, or Tenant's officers, contractors, licensees,
agents, servants, employees, guests, invitees or visitors.
Provided, Landlord complies with its obligations under this
Section, no damages, compensation or claim shall be payable
by Landlord for inconvenience, loss of business or annoyance
directly, incidentally or consequentially arising from any
repair or restoration of any portion of the Premises or the
Property. Landlord will not carry insurance of any kind for
the protection of Tenant or any improvements paid for by
Tenant or on Tenant's furniture or on any fixtures,
equipment, improvements or appurtenances of Tenant under
this Lease, and Landlord shall not be obligated to repair
any damage thereto or replace the same unless the damage is
caused by Landlord's negligence.
b. Condemnation. If the Premises are made untenantable by
eminent domain, or conveyed under a threat of condemnation,
this Lease shall terminate at the option of either Landlord
or Tenant as of the earlier of the date title vests in the
condemning authority or the condemning authority first has
possession of the Premises or the portion of the Property
and all Rents and other payments shall be paid to that date.
In case of taking of a part of the Premises that does not
render those areas not taken untenantable, then this Lease
shall continue in full force and effect and the base rent
shall be equitably reduced based on the proportion by which
the floor area of any structures is reduced, such reduction
in base rent to be effective as of the earlier of the date
the condemning authority first has possession of such
portion or title vests in the condemning authority. The
Premises shall not be deemed untenantable if less than
twenty-five percent (25%) of the Premises is condemned.
Landlord shall be entitled to the entire award from the
condemning authority attributable to the value of the
Premises or the Real Property and Tenant shall make no claim
for the value of its leasehold. Tenant shall be permitted to
make a separate claim against the condemning authority for
moving expenses or damages resulting from interruption in
its business, provided that in no event shall Tenant's claim
reduce Landlord's award.
15. INSURANCE.
a. Liability Insurance. During the Lease term, Tenant shall
pay for and maintain commercial general liability insurance
with broad form property damage and contractual liability
endorsements. This policy shall name Landlord as an
additional insured, and shall insure Tenant's activities and
those of Tenant's employees, officers, contractors,
licensees, agents, servants, employees, guests, invitees or
visitors with respect to the Premises against loss, damage
or liability for personal injury or death or loss or damage
to property with a combined single limit of not less than
$5,000,000, and a deductible of not more than $5,000. The
insurance will be noncontributory with any liability
insurance carried by Landlord.
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b. Tenant's Insurance. During the Lease term, Tenant shall
pay for and maintain replacement cost fire and extended
coverage insurance, with vandalism and malicious mischief,
sprinkler leakage and earthquake endorsements, in an amount
sufficient to cover not less than 100% of the full
replacement cost, as the same may exist from time to time,
of all of Tenant's personal property, fixtures, equipment
and tenant improvements.
c. Miscellaneous. Insurance required under this Section
shall be with companies rated A-XV or better in Best's
Insurance Guide, and which are authorized to transact
business in the State of Washington. No insurance policy
shall be canceled or reduced in coverage and each such
policy shall provide that it is not subject to cancellation
or a reduction in coverage except after thirty (30) days'
prior written notice to Landlord. Tenant shall deliver to
Landlord upon commencement of the Lease and from time to
time thereafter, copies or certificates of the insurance
policies required by this Section. In no event shall the
limit of such policies be considered as limiting the
liability of Tenant under this Lease.
d. Landlord Insurance. Landlord shall carry standard form
extended coverage fire insurance of the Building shell and
core in the amount of their full replacement value, and such
other insurance of such types and amounts as Landlord, in
its discretion, shall deem reasonably appropriate, which may
include without limitation coverage for loss of Rents from
the Premises. The cost of any such insurance be included in
the Operating Costs of the Building. Landlord's insurance
may be included in a "blanket policy" insuring other parties
and/or locations in addition to the Building, in which case
the portion of the premiums therefor allocable to the
Building shall be included in the Operating Costs of the
Building. In addition to the foregoing, in the event Tenant
fails to provide or keep in force any of the insurance as
required above, Landlord, in its discretion, may provide
such insurance, in which event, the cost thereof shall be
payable by Tenant to Landlord as additional rent on the
first day of the calendar month immediately following demand
therefor from Landlord. Landlord shall make all reasonable
attempts to secure insurance that does not charge a higher
premium due to Tenant's particular use of the Premises as a
floor covering and ancillary products warehouse and
distribution center.
e. Waiver of Subrogation. Landlord and Tenant hereby release
each other and any other tenant, their agents or employees,
from responsibility for, and waive their entire claim of
recovery for any loss or damage arising from any cause
covered by insurance required to be carried by each of them.
Each party shall provide notice to the insurance carrier or
carriers of this mutual waiver of subrogation, and shall
cause its respective insurance carriers to waive all rights
of subrogation against the other, This waiver shall not
apply to the extent of the deductible amounts to any such
policies or to the extent of liabilities exceeding the
limits of such policies.
16. INDEMNIFICATION. Tenant shall defend, indemnity, and hold
Landlord harmless against all liabilities, damages, costs,
and expenses, including attorneys' fees, arising from any
negligent or wrongful act or omission of Tenant or Tenant's
officers, contractors, licensees, agents, servants,
employees, guests, invitees, or visitors on or around the
Premises or arising from any breach of this Lease by Tenant.
Tenant shall use legal counsel acceptable to Landlord in
defense of any action within Tenant's defense obligation.
Landlord shall defend, indemnity and hold Tenant harmless
against all liabilities, damages, costs, and expenses,
including attorneys' fees, arising from any negligent or
wrongful act or omission of Landlord or Landlord's officers,
contractors, licensees, agents, servants, employees, guests,
invitees, or visitors on or around the Premises or arising
from any breach of this Lease by Landlord. Landlord shall
use legal counsel acceptable to Tenant in defense of any
action within Landlord's defense obligation.
17. ASSIGNMENT AND SUBLETTING. Except for assignments or
subleases to entities which are wholly owned by Tenant or
which are wholly owned by Tenant's parent company,
("Affiliate") Tenant shall not assign, sublet, mortgage,
encumber or otherwise transfer any interest in this Lease
(collectively referred to as a "Transfer") or any part of
the Premises, without first obtaining Landlord's written
consent, which will not be unreasonably withheld or delayed.
No Transfer shall relieve Tenant of any liability
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under this Lease notwithstanding Landlord's consent to such
transfer, nor shall any Transfer with or without Landlord's
consent relieve any guarantor of this Lease from liability
on such guarantee. Consent to any Transfer shall not operate
as a waiver of the necessity for Landlord's consent to any
subsequent Transfer. As a condition to Landlord's approval,
if given, any potential assignee or subtenant otherwise
approved by Landlord shall assume all obligations of Tenant
under this Lease and shall be jointly and severally liable
with Tenant and any guarantor, if required, for the payment
of Rent and performance of all terms of this Lease. In
connection with any Transfer, Tenant shall provide Landlord
with copies of all assignments, subleases and assumption
instruments. In addition, in the event of a sublease or
assignment of all or a portion of the Premises to an entity
that is not an Affiliate, in which the subtenant or assignee
gives total consideration greater in value than the rent due
to Landlord hereunder for said portion ("Bonus Rent"),
Tenant shall pay to Landlord fifty percent (50%) of the
Bonus Rent as it is received by Tenant. In calculating Bonus
Rent subtenant's or assignee's total consideration given
shall be converted as closely as possible to a dollar per
square foot per month value which shall be compared to the
same value determined under this Lease.
18. LIENS. Tenant shall have no authority, express or implied,
to create or place any lien or encumbrance of any kind or
nature whatsoever upon, or in any manner to bind, the
interest of Landlord in the Premises or to charge the
rentals payable hereunder for any claim in favor of any
person dealing with Tenant, including those who may furnish
materials are perform labor for any construction or repairs,
and each such claim shall affect and each such lien shall
attach to, if at all, only the leasehold interest granted to
Tenant by this Lease. Tenant covenants and agrees that it
will pay or cause to be paid all sums legally due and
payable by it on account of any labor performed or materials
furnished in connection with any work performed on the
Premises on which any lien is or can be validly and legally
asserted against Tenant's interest in the Premises or the
improvements thereon, and that it will save and hold
Landlord harmless from any and all loss, cost or expense
based on or arising out of asserted claims or liens against
the leasehold estate or against the right, title and
interest of Landlord in the Premises. If a lien is filed
against the Premises by any person claiming by, through or
under Tenant, Tenant shall, upon request of Landlord, at
Tenant's expense, immediately furnish to Landlord a bond in
form and amount and issued by a surety satisfactory to
Landlord, indemnifying Landlord and the Premises against all
liabilities, costs and expenses, including attorneys' fees,
which Landlord could reasonably incur as a result of such
lien(s).
19. DEFAULT. The following occurrences shall each be deemed an
Event of Default by Tenant:
a. Failure To Pay. Tenant fails to pay any sum, including
Rent, due under this Lease following five (5) days written
notice from Landlord of the failure to pay.
b. Insolvency. Tenant becomes insolvent, voluntarily or
involuntarily bankrupt, or a receiver, assignee or other
liquidating officer is appointed for Tenant's business,
provided that in the event of any involuntary bankruptcy or
other insolvency proceeding, the existence of such
proceeding shall constitute an Event of Default only if such
proceeding is not dismissed or vacated within 60 days after
its institution or commencement.
c. Levy or Execution. Tenant's interest in this Lease or the
Premises, or any part thereof, is taken by execution or
other process of law directed against Tenant, or is taken
upon or subjected to any attachment by any creditor of
Tenant, it such attachment is not discharged within 15 days
after being levied.
d. Other Non-Monetary Defaults. Tenant breaches any
agreement, term or covenant of this Lease other than one
requiring the payment of money and not otherwise enumerated
in this Section, and the breach continues for a period of 30
days after notice by Landlord to Tenant of the breach.
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20. REMEDIES. Landlord shall have the following remedies upon an
Event of Default. Landlord's rights and remedies under this
Lease shall be cumulative, and none shall exclude any other
right or remedy allowed by law.
a. Termination of Lease. Landlord may terminate Tenant's
interest under the Lease, but no act by Landlord other than
written notice from Landlord to Tenant of termination shall
terminate this Lease. The Lease shall terminate on the date
specified in the notice of termination. Upon termination of
this Lease, Tenant will remain liable to Landlord for
damages in an amount equal to the Rent and other sums that
would have been owing by Tenant under this Lease for the
balance of the Lease term, less the net proceeds, if any, of
any reletting of the Premises by Landlord subsequent to the
termination, after deducting all Landlord's Reletting
Expenses (as defined below). Landlord shall be entitled to
either collect damages from Tenant monthly on the days on
which Rent or other amounts would have been payable under
the Lease, or alternatively, Landlord may accelerate Tenants
obligations under the Lease and recover from Tenant: (i)
unpaid Rent which had been earned at the time of
termination; (ii) the amount by which the unpaid Rent which
would have been earned after termination until the time of
award exceeds the amount of Rent loss that Tenant proves
could reasonably have been avoided; (iii) the amount by
which the unpaid Rent for the balance of the term of the
Lease after the time of award exceeds the amount of Rent
loss that Tenant proves could reasonably be avoided
(discounting such amount by the discount rate of the Federal
Reserve Bank of San Francisco at the time of the award, plus
1%); and (iv) any other amount necessary to compensate
Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligations under the Lease,
or which in the ordinary course would be likely to result
from the Event of Default, including without limitation
Reletting Expenses described in Section 21(b).
b. Re-Entry and Reletting. Landlord may continue this Lease
in full force and effect, and without demand or notice, re-
enter and take possession of the Premises or any part
thereof, expel the Tenant from the Premises and anyone
claiming through or under the Tenant, and remove the
personal property of either. Landlord may relet the
Premises, or any part of them, in Landlord's or Tenant's
name for the account of Tenant, for such period of time and
at such other terms and conditions, as Landlord, in its
discretion, may determine. Landlord may collect and receive
the Rents for the Premises. Re-entry or taking possession of
the Premises by Landlord under this Section shall not be
construed as an election on Landlord's part to terminate
this Lease, unless a written notice of termination is given
to Tenant. Landlord reserves the right following any re-
entry or reletting, or both, under this Section to exercise
its right to terminate the Lease. During the Event of
Default, Tenant will pay Landlord the Rent and other sums
which would be payable under this Lease if repossession had
not occurred, plus the net proceeds, if any, after reletting
the Premises, after deducting Landlord's Reletting Expenses.
"Reletting Expenses" is defined to include all expenses
incurred by Landlord in connection with reletting the
Premises, including without limitation, all repossession
costs, brokerage commissions, attorneys' fees, remodeling
and repair costs, costs for removing and storing Tenant's
property and equipment, and rent concessions granted by
Landlord to any new Tenant, prorated over the life of the
new lease.
c. Waiver of Redemption Rights. Tenant, for itself, and on
behalf of any and all persons claiming through or under
Tenant, including creditors of all kinds, hereby waives and
surrenders all rights and privileges which they may have
under any present or future law, to redeem the Premises or
to have a continuance of this Lease for the Lease term, as
it may have been extended.
d. Nonpayment of Additional Rent All costs which Tenant
agrees to pay to Landlord pursuant to this Lease shall in
the event of nonpayment be treated as if they were payments
of Rent, and Landlord shall have all the rights herein
provided for in case of nonpayment of Rent.
e. Failure to Remove Property. If Tenant fails to remove
any of its property from the Premises at Landlord's request
following an uncured Event of Default, Landlord may, at its
option, remove and store the property at Tenant's expense
and risk. If Tenant does not pay the storage cost within
five (5) days of Landlord's request,
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Landlord may, at its option, have any or all of such
property sold at public or private sale (and Landlord may
become a purchaser at such sale), in such manner as Landlord
deems proper, without notice to Tenant. Landlord shall apply
the proceeds of such sale: (i) to the expense of such sale,
including reasonable attorneys' fees actually incurred; (ii)
to the payment of the costs or charges for storing such
property; (iii) 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 (iv) the balance,
if any, to Tenant. Nothing in this Section shall limit
Landlord's right to sell Tenant's personal property as
permitted by law to foreclose Landlord's lien for unpaid
rent.
21. RESTRICTIONS. This Lease is subject to the effect of (a) any
covenants, conditions, restrictions, easements, or rights of
way of record, and any other matters or documents of record;
(b) any zoning laws of the city, county and state where the
Real Property is situated; and (c) general and special taxes
not delinquent. Tenant agrees that as to its leasehold
estate, Tenant and all persons in possession or holding
under Tenant will conform to and will not violate the terms
of any covenants, conditions or restrictions of record which
may now or hereafter encumber the property (hereinafter the
"Restrictions"). This Lease is subordinate to the
Restrictions and any amendments or modifications thereto.
22. MORTGAGE SUBORDINATION/NON-DISTURBANCE. Tenant accepts this
Lease subject and subordinate to any mortgages and/or deeds
of trust now or any time hereinafter constituting a lien or
charge upon the Premises or the improvements situated
thereon, provided, however, that if the mortgagee, trustee,
or holder of any such mortgage or deed of trust elects to
have Tenant's interest in this Lease superior to any such
instrument, then by notice to Tenant from such mortgagee,
trustee or holder, this Lease shall be deemed to superior to
such lien, whether this Lease was executed before after said
mortgage or deed of trust.. Tenant shall at any time
hereinafter on demand execute any instruments, releases or
other documents which may be required by any mortgagee for
the purpose of subjecting and subordinating this Lease to
the lien of any such mortgage; provided however that such
instruments must provide that in the event the mortgagee or
the beneficiary of the deed of trust becomes the owner of
the Premises pursuant to any foreclosure or trustee's sale,
the mortgagee or beneficiary will not disturb Tenant in it
possession and enjoyment of the Premises so long as Tenant
abides by the terms and conditions of this Lease.
23. NON-WAIVER. Landlord's waiver of any breach of any term
contained in this Lease shall not be deemed to be a waiver
of the same term for subsequent acts of Tenant. The
acceptance by Landlord of Rent or other amounts due by
Tenant hereunder shall not be deemed to be a waiver of any
breach by Tenant preceding such acceptance.
24. HOLDOVER. If Tenant shall, without the written consent of
Landlord, hold over after the expiration or termination of
the Term, such tenancy shall be deemed to be on a month-to-
month basis and may be terminated according to Washington
law. During such tenancy, Tenant agrees to pay to Landlord
125% the rate of Rent last payable under this Lease, unless
a different rate is agreed upon by Landlord. All other terms
of the Lease shall remain in effect.
25. COSTS AND ATTORNEYS' FEES. If Tenant or Landlord engage the
services of an attorney to collect monies due or to bring
any action for any relief against the other, declaratory or
otherwise, arising out of this Lease, including any suit by
Landlord for the recovery of Rent or other payments, or
possession of the Premises, the losing party shall pay the
prevailing party a reasonable sum for attorneys' fees and
expert witness fees in such suit, at trial and on appeal.
26. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, upon
written request of Landlord, execute, acknowledge and
deliver to Landlord or its designee a written statement
specifying the following, subject to any modifications
necessary to make such statements true and complete: (i) the
date the Lease term commenced and the date it expires; (ii)
the amount of monthly base rent and the date to which such
base rent has been paid; (iii) that this Lease is in full
force and effect and has not been assigned, modified,
supplemented or amended in any way; (iv) that this Lease
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represents the entire agreement between the parties; (v)
that all conditions under this Lease to be performed by
Landlord have been satisfied; (vi) that there are no
existing claims, defenses or offsets which the Tenant has
against the enforcement of this Lease by Landlord; (vii)
that no Rent has been paid more than one month in advance;
(viii) that no security has been deposited with Landlord
(or, if so, the amount thereof) and (ix) any such other
matters pertaining to this Lease may be requested by
Landlord. Any such statement delivered pursuant to this
Section may be relied upon by a prospective purchaser of
Landlord's interest or assignee of any mortgage or new
mortgagee of Landlord's interest in the Premises. It Tenant
shall fail to respond within ten (10) 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 purchaser or mortgagee.
27. TRANSFER OF LANDLORD'S INTEREST. This Lease shall be
assignable by Landlord without the consent of Tenant. Any
such assignment shall not alter the terms of this lease. In
the event of any transfer or transfers of Landlord's
interest in the Premises, other than a transfer for security
purposes only, upon the assumption of this Lease by the
transferee, Landlord shall be automatically relieved of
obligations and liabilities accruing from and after the date
of such transfer, except for any retained security deposit
or prepaid rent, and Tenant shall attorn to the transferee.
28. LIABILITY OF LANDLORD. Landlord shall not be liable to
Tenant or Tenant's employees, agents, servants, guests,
invitees or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the
Premises, resulting from and/or caused in part or whole by
the negligence or misconduct of Tenant, its employees,
agents, servants, guests, invitees or visitors, or any other
person entering upon the Premises, or caused by the Building
or the Premises becoming out of repair, or caused by leakage
of gas, oil, water, steam or by electricity emanating from
the Premises, or due to any cause whatsoever, and Tenant
hereby covenants and agrees that it will at all times
indemnify, defend and hold safe and harmless the Real
Property, the Premises, Landlord, Landlord's employees,
agents, servants, guests, invitees, and visitors from any
loss, liability, claims, suits, costs, expenses, including
without limitation attorneys' fees and damages, both real
and alleged, arising out of any such damage or injury;
except injury to persons or damage to property the sole
cause of which is the negligence of Landlord. Tenant agrees
that no trustee, officer, employee, or agent of Landlord,
shall be personally liable for any obligation of Landlord
hereunder, and that Tenant must look solely to the interests
of Landlord in the Real Property for the enforcement of any
claims against Landlord arising here under.
29. RIGHT TO PERFORM. If Tenant shall fail to timely pay any sum
or perform any other act on its part to be performed
hereunder, Landlord may make any such payment or perform any
such other act on Tenant's part to be made or performed as
provided in this Lease. Tenant shall, on demand, reimburse
Landlord for its expenses incurred in making such payment or
performance. Landlord shall (in addition to any other right
or remedy of Landlord provided by law) have the 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.
30. HAZARDOUS MATERIALS. Tenant agrees that neither Tenant nor
Tenant's employees, officers, agents, invitees, customers,
agents or representatives will use, generate, release,
treat, store or dispose of Hazardous Materials on the
Premises except in accordance with any law, ordinance, rule
or regulation of any governmental authority having
jurisdiction of the Premises. If Tenant breaches the
obligations stated in the preceding sentence, or if the
presence of Hazardous Materials on the Premises caused or
permitted by Tenant result in contamination of the Premises,
then Tenant shall indemnify, defend and hold Landlord
harmless from any and 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 space or
of any adverse impact on marketing of space in the Premises,
and sums paid in settlement of claims, attorneys' fees,
consultant fees and expert fees) which arise during or after
the Lease term as a result of such contamination. This
-15-
<PAGE>
indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any
investigation of site conditions or any cleanup,
remediation, removal or restoration work required by any
federal, state or local governmental agency, political
subdivision, lender or buyer because of Hazardous Materials
present in the soil or groundwater on or under the Premises,
diminution in value of the Premises, damages for the loss or
restriction on use of space in the Building or on the Real
Property, damages arising from any adverse impact on
marketing of the Real Property or of the Building, and sums
paid in settlement of claims, attorneys' fees, consultant
fees, laboratory fees and expert fees. Without limiting the
foregoing, if the presence of any Hazardous Materials on the
Premises or Real Property caused or permitted by Tenant
results in any contamination of the Premises or the Real
Property, Tenant shall promptly take all actions at its sole
expense as are necessary to return the Real Property and the
Premises to the condition existing prior to the
contamination by any such Hazardous Materials; provided,
however, the Landlord's approval of such action shall first
be obtained, which approval shall not be unreasonably
withheld.
Tenant will deliver to Landlord copies of any documents
received from, or sent by. Tenant to, the United States
Environmental Protection Agency and/or any state, county or
municipal, environmental ill or health agency concerning
Tenant's operations on the Premises.
As used herein, the term "Hazardous Materials" means any
substance which is (i) designating, defined, classified or
regulated as a hazardous substance, hazardous material,
hazardous waste, pollutant or contaminant under any
Environmental Law, as currently in effect or as hereinafter
amended or enacted, (ii) a petroleum hydrocarbon, including
crude oil or any fraction thereof and all petroleum
products, (iii) PCBs, (iv) lead, (v) asbestos, (vi)
flammable explosives, (vii) infectious materials, or (viii)
radioactive materials. "Environmental Law(s)" means the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U. S. C. (S) 9601 et seq., the
Resource Conservation and Recovery Act of 1976, 42 U. S. C.
(S) 6901 et seq., the Toxic Substances Control Act, 15 U. S.
C. (S) 2601 et seq., the Hazardous Materials Transportation
Act, 49 U. S. C. (S) 1801 et seq., the Clean Water Act, 33
U. S. C. (S) 1251 et seq., and the Washington Model Toxics
Control Act, Chapter 70.105D, Revised Code of Washington, as
said laws have been supplemented or amended to date, the
regulations promulgated pursuant to said laws and any other
federal, state or local law, statute, rule, regulation or
ordinance which regulates or proscribes the use, storage,
disposal, presence, cleanup, transportation or release or
threatened release into the environment of Hazardous
Materials.
31. QUIET ENJOYMENT. So long as Tenant pays the Rent and
performs all of its obligations in this Lease, Tenant's
possession of the Premises will not be disturbed by Landlord
or anyone claiming by, through or under Landlord.
32. GENERAL.
a. Heirs and Assigns. This Lease shall apply to and be
binding upon Landlord and Tenant and their respective heirs,
executors, administrators, successors and assigns.
b. Brokers' Fees. Tenant represents and warrants to Landlord
that it has not engaged any broker, finder or other person
who would be entitled to any commission or fees for the
negotiation, execution, or delivery of this Lease other than
the Andover Company, and Scott Rice, Kidder Matthews and
Segner Inc. and Richard T. Davidson and Alliance Partners
Inc., a Georgia Corporation, which brokers shall be paid a
commission by Landlord pursuant to a separate agreement.
Tenant shall indemnify and hold Landlord harmless against
any loss, cost, liability or expense incurred by Landlord as
a result of any claim asserted by any other 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.
c. Entire Agreement. This Lease contains all of the
covenants and agreements between Landlord and Tenant
relating to the Premises. No prior or contemporaneous
-16-
<PAGE>
agreements or understanding pertaining to the Lease 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.
d. Severability. 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 of this Lease.
e. Force Majeure. Time periods for either party's
performance under any provisions of this Lease (excluding
payment of Rent) shall be extended for periods of time
during which the party's performance is prevented due to
circumstances beyond such party's control, including without
limitation, fires, floods, earthquakes, lockouts, strikes,
embargoes, governmental regulations, acts of God, public
enemy, war or other strife.
f. Governing Law/Venue. This Lease shall be governed by and
construed in accordance with the laws of the State of
Washington. Venue and jurisdiction for any dispute between
Landlord and Tenant in any way concerning or connected to
this Lease shall be in the Superior Court of Washington in
King County.
g. Memorandum of Lease. This Lease shall not be recorded.
However, Landlord and Tenant shall, at the other's request,
execute and record a memorandum of Lease in recordable form
that identifies Landlord and Tenant, the commencement and
expiration dates of the Lease, and the legal description of
the Premises.
h. Submission of Lease Form Not An Offer. One party's
submission of this Lease to the other for review shall not
constitute an offer to lease the Premises. This Lease shall
not become effective and binding upon Landlord and Tenant
until it has been fully signed by both Landlord and Tenant.
i. No Light, Air or View Easement. Tenant has not been
granted an easement or other right for light, air or view to
or from the Premises. Any diminution or shutting off of
light, air or view by any structure which may be erected on
or adjacent to the Building shall in no way effect this
Lease or the obligations of Tenant hereunder or impose any
liability on Landlord.
j. Authority of Parties. Any individual signing this Lease
on behalf of an entity represents and warrants to the other
that such individual has authority to do so and, upon such
individual's execution, which this Lease shall be binding
upon and enforceable against the party on behalf of whom
such individual is signing. Tenant and Landlord shall each
provide the other with a resolution of its Board of
Directors authorizing the execution of this Lease on behalf
of the corporation by the individual whose signature appears
below.
33. Exhibits and Riders. The following exhibits and riders are
made a part of this Lease:
EXHIBIT A: Legal description of Real Property, less strip of
land running south of Building
EXHIBIT B: Site plan identifying Premises and Reserved Space
EXHIBIT C: Tenant's Required Specifications
EXHIBIT D: Tenant's Office Space Plan
EXHIBIT E: Specifications for Tenant Improvements to Office
Spaces to be Constructed by Landlord
EXHIBIT F: Schedule of Building Plans
IN WITNESS WHEREOF Landlord and Tenant had executed this
lease agreement on the day and date first mentioned above.
LANDLORD: TENANT:
Seattle-Tacoma Box Co. Aladdin Manufacturing Corp.
a Washington corporation a Delaware corporation
-17-
<PAGE>
By: Fred J. Nist By: Salvatore J. Perillo
-------------------------- ---------------------------------
Its: President Its: Asst/Secretary/General Counsel
-------------------------- ---------------------------------
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 10/th/ day of December, 1999, before me personally
appeared Fred J. Nist, to me known (or proven on the basis of
satisfactory evidence) to be the President of SEATTLE-TACOMA BOX
CO., 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
purposes therein mentioned, and on oath stated that he was
authorized to execute said instrument and that the seal affixed,
if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and affixed
my official seal the day and year first above written.
Trudy L. Burch
---------------------------------------
NOTARY PUBLIC in and for the State of
Washington, residing at Corington
---------------
My commission expires 5-12-2000
----------------
Print Name: Trudy L. Burch
--------------------------
STATE OF GEORGIA )
------------
) ss.
COUNTY OF Gordon )
-----------
On this 1/st/ day of December, 1999, before me personally
appeared Salvatore J. Perillo to me known (or proven on the basis
--------------------
of satisfactory evidence) to be the Asst Secretary/General
Counsel of ALADDIN MANUFACTURING CORP., 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 purposes therein mentioned, and on
oath stated that he was authorized to execute said instrument and
that the seal affixed, if any, is the corporate seal of said
corporation.
IN WITNESS WHEREOF I have hereunto set my hand and affixed
my official seal the day and year first above written.
Elaine Busbee
--------------------------------------------
NOTARY PUBLIC in and for the State of
Georgia, residing at Acworth, Paulding Co. GA
------------------------
My commission expires Notary Public Paulding
County, Georgia
My commission expires Nov. 3, 2001
Print Name: Elaine Busbee
----------------------------------
My commission expires Nov. 3, 2001
-18-
<PAGE>
EXHIBIT A
Legal Description of Real Property
LOT 2, CITY OF KENT SHORT PLAT NO. 74-1, RECORDED UNDER RECORDING NO.
7808170845, BEING A PORTION OF THE NORTH HALF OF THE SOUTHWEST QUARTER
OF SECTION 13, TOWNSHIP 22 NORTH, RANGE 4 EAST, WILLAMETTE MERIDIAN,
IN KING COUNTY, WASHINGTON.
-19-
<PAGE>
EXHIBIT B
Site Plan Identifying Premises and Reserved Space
[SITE PLAN]
<PAGE>
EXHIBIT C
Tenant's Required Specifications
1. 30 ft. minimum clear height.
2. 3 ft. 10 inch permanent metal canopy running the length of the
dock area.
3. Sealed warehouse floor, using Burke Cure and Seal sealant.
4. Lighting at 30 ft. candles at 3 ft. in the aisles.
5. 6 X 30,000 lb. Capacity FX-6 x 8-30 fully automatic Kelly Air Bag
Levelors.
6. Ten mechanical edge of dock 30,000 lb. capacity 72" wide by 29"
long.
7. Two grade level doors 12'x14' to be located adjacent to office
area on west end of Building
-21-
<PAGE>
EXHIBIT D
Tenant's Office Space Plan
<PAGE>
[OFFICE 516 SF PLAN]
<PAGE>
EXHIBIT E
Specifications for Tenant Improvements to Office Spaces, to be
Constructed by Landlord
1. Framing and drywall:
-------------------
a. Metal stud framing with 5/8 type drywall on both sides,
ready to receive paint.
2. Insulation:
----------
a. Sound batt insulation at restrooms
b. Humidor insulation in ceiling and insulation to meet
Washington State Energy Code
3. Wood Doors:
----------
a. 3'-0" x 7'-0" solid core stain grade oak doors with hem
fir jambs
b. Doors to be 1-3/4" thick
4. Finish Hardware:
---------------
a. Provide all finish hardware in suitable fashion to
complete work in accordance with the drawings
b. Lock sets and latch sets shall be Schlege "D" series
lever hardware or Yale lever hardware or approved
equal - cylindrical style
c. Strike plates and hinges to match
d. Closures will be provided on restroom doors and doors
leading from conditioned space to unheated space
5. Glass and Glazing:
-----------------
a. Provide glass and glazing as indicated on drawings
b. All perimeter glass to meet Washington State Energy
Code and shall be 1" insulated units
c. Interior relites shall be clear 1/4" glass and shall be
tempered glass in locations required by the Uniform
Building Code
d. Six (6) 3'x6' interior relites shall be provided at
locations selected by the tenant
6. Acoustical Ceilings:
-------------------
a. 24" x 48" grid system
b. Ceiling boards shall be second look tegular tile
c. Ceiling system shall meet seismic requirements
7. Floor Covering:
--------------
a. Carpeting in office areas shall be a $15.00/SY
allowance
i. 28 ounce level loop Mohawk carpet or approved
equal
ii. carpet material allowance of $21,000.00
b. Coved base sheet vinyl at the restroom floors
c. 4" rubber base at all areas receiving carpeting
d. Plastic laminate wainscoting at wet walls in restrooms
e. Warehouse concrete floors to be sealed with Burke Cure
& Seal or approved equal
f. Vinyl floor covering and laminate countertops at
lunchroom
-1-
<PAGE>
8. Painting:
--------
a. Interiors doors and millwork to receive one coat of
stain, one coat of sealer and two coats of lacquer or
varnish
b. Gypsum wallboard to be painted shall receive one coat
of primer and one finish coat
9. Toilet Room Accessories:
-----------------------
a. Trash dispensers shall be one per water closet
b. Napkin dispensers shall be one per water closet at
women's restrooms
c. Paper towel dispenser shall be one per restroom
d. Soap dispenser shall be one per lavatory
e. Waste receptacles shall be one per restroom
f. Mirrors shall be above vanities
g. Grab bars per Uniform Building Code and to meet ADA
requirements
h. Toilet partitions per plans and/or as required
10. HVAC:
----
a. Provide a complete design/build heating, ventilating
and air conditioning system in accordance with
Washington State Energy Codes
b. Units to be gas fired rooftop package units
c. Separate HVAC units will be provided for the first and
second floor office spaces.
d. Separate HVAC units will be provided for the 516 square
foot office space.
11. Fire Protection:
---------------
a. Provide a fire sprinkler system to meet all local
applicable codes
b. Heads to be semi-recessed chrome plated
12. Plumbing:
--------
a. Plumbing fixtures shall be as shown on architectural
plans and detail
b. Color shall be white unless otherwise noted
c. Trim shall be brass with all exposed metal parts chrome
plated
d. Water closets shall be floor mount with pressure assist
valves
e. Urinals shall be wall hung flush valve
f. Lavs shall be China white with single lever faucets
with pop-up drains
g. Gas fired hot water tank to provide hot water for
fixtures shown
h. Water drinking fountain per building code and UBC
13. Electrical:
----------
a. Design/build electrical system in accordance with the
architectural drawings
b. Design and construction shall conform to state, local
and all utility requirements
c. Lighting fixtures shall be designed to provide state
energy code lighting levels in accordance with the
architectural plans
d. Light fixtures shall be 2x4 fluorescent parabolic
lights on the first floor office area and 2x4 standard
prismatic fluorescent fixtures at the second floor
e. Duplex receptacles shall be a minimum of two per office
and one per 15' in the open office areas. Standards to
be 110 volt, 15 amp grounded circuits with the maximum
number of outlets per circuits to be 8 unless otherwise
approved
f. Telephones and data pull boxes shall be provided at one
per office and one per 15 feet in the open areas
g. A plywood backboard shall be provided for telephone
equipment
h. Electrical service and panels shall be designed to meet
all of the office and warehouse loads and be in
accordance with NEC, state and local code requirements
i. Lighting shall be 208/277 volt; light switches shall be
provided at all offices and dual switching at areas
with natural lighting per the energy code. Restrooms
shall have surface mount fluorescent for fixtures.
-2-
<PAGE>
j. Minimum of ten (10) duplex outlets in shipping office.
k. Minimum of six (6) duplex outlets in office support
area
l. Minimum of ten (10) duplex outlets in open staff area
-3-
<PAGE>
EXHIBIT F
SCHEDULE OF BUILDING PLANS
<CAPTION>
---------------------------------------------------------------------------------------------------
PLAN NO. DESCRIPTION DATE
---------------------------------------------------------------------------------------------------
C1 Cover Sheet and Notes 11/19/99
---------------------------------------------------------------------------------------------------
C2 Site Plan 11/8/99
---------------------------------------------------------------------------------------------------
03 TESC Plan 11/8/99
---------------------------------------------------------------------------------------------------
C4 Storm Drainage and Grading Plan 11/8/99
---------------------------------------------------------------------------------------------------
C5 Sanitary Sewer and Water Line Plan 11/8/99
---------------------------------------------------------------------------------------------------
C6 Street Improvements Plan 11/8/99
---------------------------------------------------------------------------------------------------
C7 Ditch TESC Plan 11/8/99
---------------------------------------------------------------------------------------------------
08 Ditch Relocation and Grading Plans 11/9/99
---------------------------------------------------------------------------------------------------
C9 Notes 11/9/99
---------------------------------------------------------------------------------------------------
ClO Section and Details 11/19/99
---------------------------------------------------------------------------------------------------
C11 Sections and Details 11/19/99
---------------------------------------------------------------------------------------------------
C12 Water Line and Storm Drain Profiles 11/19/99
---------------------------------------------------------------------------------------------------
C13 Keystone Details and Notes 11/19/99
---------------------------------------------------------------------------------------------------
1 of 1 Boundary and Topographic Survey 7/22/99
---------------------------------------------------------------------------------------------------
VMD1 Vehicle Maneuvering Diagram 11/9/99
---------------------------------------------------------------------------------------------------
L1 Landscape Plan Undated
---------------------------------------------------------------------------------------------------
L2 Irrigation Plan Undated
---------------------------------------------------------------------------------------------------
L3 Landscape Plan Undated
---------------------------------------------------------------------------------------------------
R1 Track Plan and Profile (Railroad) 7/6/99
---------------------------------------------------------------------------------------------------
R2 Sections and Details (Railroad) 7/6/99
---------------------------------------------------------------------------------------------------
Al Floor Plan - West 11/19/99
---------------------------------------------------------------------------------------------------
A2 Floor Plan - East 11/15/99
---------------------------------------------------------------------------------------------------
A3 Exterior Building & Interior Building Elevations 11/19/99
---------------------------------------------------------------------------------------------------
A4 Entrance Plans & Elevations & Details 11/19/99
---------------------------------------------------------------------------------------------------
A5 Wall Sections 11/19/99
---------------------------------------------------------------------------------------------------
A6 Floor & Reflected Ceiling Plans 11/19/99
---------------------------------------------------------------------------------------------------
A7 Ladder & Roof Hatch Details 11/19/99
---------------------------------------------------------------------------------------------------
A8 General Notes 11/16/99
---------------------------------------------------------------------------------------------------
A9 General Notes & Accessibility Notes 11/16/99
---------------------------------------------------------------------------------------------------
A10 Accessibility Notes 11/19/99
---------------------------------------------------------------------------------------------------
S1 Foundation Plan - West 11/19/99
---------------------------------------------------------------------------------------------------
S2 Foundation Plan - East 11/19/99
---------------------------------------------------------------------------------------------------
S3 Roof Framing Plan - West 11/19/99
---------------------------------------------------------------------------------------------------
S4 Roof Framing Plan - East 11/19/99
---------------------------------------------------------------------------------------------------
S5 Foundation Details 11/19/99
---------------------------------------------------------------------------------------------------
S6 Precast Tilt-Up Panel Elevations 11/19/99
---------------------------------------------------------------------------------------------------
S7 Precast Tilt-Up Panel Elevations 11/19/99
---------------------------------------------------------------------------------------------------
S8 Precast Tilt-Up Panel Elevations 11/19/99
---------------------------------------------------------------------------------------------------
S9 Structural Details 11/16/99
---------------------------------------------------------------------------------------------------
S10 Structural Details 11/16/99
---------------------------------------------------------------------------------------------------
S11 Structural Notes 11/16/99
---------------------------------------------------------------------------------------------------
S12 Structural Details 11/16/99
---------------------------------------------------------------------------------------------------
S13 Office Foundation Plan, West 11/19/99
---------------------------------------------------------------------------------------------------
S14 Structural Details 11/16/99
---------------------------------------------------------------------------------------------------
<PAGE>
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement is made this ____ day of August,
2000 between SEATTLE BOX COMPANY, a Washington corporation doing business as
SEATTLE-TACOMA BOX COMPANY ("Landlord") and ALADDIN MANUFACTURING CORPORATION, a
Delaware corporation ("Tenant") and is an amendment to that Lease between the
parties dated December 10, 1999 ("Lease") affecting the Premises located on Lot
2, City of Kent. Short Plat No. 74-1, recorded under Recording Number
7808170845, located in King County Washington.
WHEREAS the Tenant has requested that certain changes be made in the
construction of the Building; and
WHEREAS these changes will change the cost of the Building and the time for
completion of the Building;
The parties hereby agree to amend the Lease as follows:
1. Column Change. The Building Plans listed in Exhibit F to the Lease
-------------
will be changed to reflect that the columns supporting the roof of the Building
shall be located as shown on those plans and drawings dated January 28, 2000.
showing relocation of the columns. The change in the column locations is
referred to as the "Column Change". The parties acknowledge that the columns
have been constructed in the location desired by the Tenant and as reflected in
the Column Change;
2. Sprinkler System Change. The original Lease provides that the building
-----------------------
shall include installation by Landlord of an overhead ESFR fire sprinkler system
("Landlord's Sprinkler System") and that the Tenant may thereafter convert
Landlord's Sprinkler System into an in-rack sprinkler system ("Tenant's
Sprinkler System"). The Lease further provides that upon surrender of the
Premises at the end of the lease term, the Tenant will restore the Landlord's
Sprinkler System. The parties have agreed to change this arrangement. Paragraphs
3A and 11 of the Lease shall be amended in part to provide that, as part of
construction of the Building, the Landlord will alter the Building and construct
an in-rack sprinkler system as requested by Tenant. These alterations and the
new sprinkler system are represented in plans and specifications original
submitted to the City of Kent on February 11, 2000 and then resubmitted to
include a smoke curtain on March 20, 2000 and are referred to herein as the
"Revised Sprinkler System". Regarding surrender of the Premises, unless Landlord
notifies Tenant otherwise in writing, prior to the time of Tenant's surrender of
the Premises, Tenant shell construct on the Premises a fully operational ESFR
system. Upon surrender of the premises this ESFR system shall be fully
operational. In the event that at the time of surrender ESFR sprinkler systems
are no longer being constructed, tenant shall construct and surrender with the
Premises the then in use system most similar in performance and quality to the
ESFR systems currently in use.
3. Electrical System Change and Distribution System. The original plans
------------------------------------------------
for the building provided for a 200 amp distribution panel on the Premises and
provided a $5,000 credit for the cost of distribution of the power throughout
the Premises. The original lease made no provision for the electrical costs
associated with the relocation of Tenant's equipment to the Premises and the
modifications that would be necessary to that equipment. The parties have agreed
that the main distribution panel will be increased by Landlord to 600 amps, that
Landlord will provide the electrical distribution system to Tenant's equipment,
that Landlord will provide extra electrical outlets as requested by Tenant and
that Landlord will complete certain equipment modifications which have been
negotiated between Tenant and Landlord's contractor. All such additional
electrical work shall be referred to herein as the Electrical Change.
-1-
<PAGE>
4. Commencement Date. The Commencement Date of the Lease described in
-----------------
Sections 1(c) and 3(d) of the Lease shall be June 15, 2000.
5. Liquidated Damages For Late Delivery. Paragraph 3(e) of the Lease is
------------------------------------
hereby deleted in its entirety.
6. Reimbursements for Changes. Tenant agrees to reimburse Landlord for
--------------------------
the Column Change and Sprinkler System Changes as follows. The additional cost
to the Tenant of the Column Change is $17,859.56, which shall be paid to
Landlord within fifteen (15) business days of Tenant receiving a bill for the
Column Change, which bill shall be issued by Landlord as Landlord is billed for
the changes by the contractor. At Landlord's election, its administrative fee
may be billed on a pro rata basis in installments or as part of the final
billing. The additional cost to the Tenant of the Sprinkler System Change is
$174,035.50 which shall be paid to Landlord within fifteen (15) business days of
Tenant receiving a bill for the Sprinkler System Change, which bill shall be
issued by Landlord as Landlord is billed for the items included in the Sprinkler
System Change by the contractor. At Landlord's election, its administrative fee
may be billed on a pro rata basis in installments or as part of the final
billing. The Landlord and Tenant have agreed to share the cost of the Electrical
Change. The total cost of the Electrical Change is $55,636.97. The Landlord will
pay $2,419.55 of this amount. After credit for the $5,000 allowance in the
Lease, the additional cost to the Tenant of the Electrical Change is $48,148.00
which shall be paid to Landlord within fifteen (15) business days of Tenant
receiving a bill for the items included in the Electrical Change, which bill
shall be issued by Landlord as Landlord is billed for the changes by the
contractor, At Landlord's election, its administrative fee may be billed on a
pro rata basis in installments or as part of the final billing.
7. Except as expressly modified herein, the terms and conditions of the
Lease shall remain in full force and effect.
LANDLORD:
SEATTLE BOX COMPANY
dba SEATTLE-TACOMA BOX COMPANY,
a Washington corporation
By: ____________________________
Its: _____________________
TENANT:
ALADDIN MANUFACTURING CORPORATION,
a Delaware are corporation
SALVATORE J. PERILLO
By: /s/ Salvatore J. Perillo ASSISTANT SECRETARY/
----------------------------- GENERAL COUNSEL
Its: _____________________
STATE OF WASHINGTON )
)ss.
COUNTY OF _________ )
On this ______ day of _________________, 2000, before me personally
appeared _____________________________________, to me known (or proven on the
basis of satisfactory evidence) to be the ______________________ of SEATTLE BOX
CO. dba SEATTLE-TACOMA BOX CO., 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 purposes therein
mentioned, and on oath stated that _____ was authorized to
-2-
<PAGE>
execute said instrument and that the seal affixed, if any, is the corporate seal
of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal
the day and year first above written.
_________________________________________
NOTARY PUBLIC in and for the State of
Washington, residing at__________________
My commission expires ___________________
Print Name:______________________________
STATE OF Georgia )
)ss.
COUNTY OF Gordon )
On this 7/th/ day of August 2000 before me personally appeared Salvatore J.
Perrillo, to me known (or proven on the basis of satisfactory evidence) to be
the General Counsel of ALADDIN MANUFACTURING CORPORATION, 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
purposes therein mentioned, and on oath stated that He was authorized to execute
said instrument and that the seal affixed, if any. is the corporate seal of said
corporation.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal
the day and year first above written.
/s/ Misty Young
----------------------------------
NOTARY PUBLIC in and for the State of
Georgia, residing at 175 Nichols Lane
My commission expires My Commission
Expires Jan 14, 2004
Print Name: Misty Young
-3-