Exhibit 10.7(i)
EIGHTH AMENDMENT TO LEASE
AGREEMENT
THIS EIGHTH
AMENDMENT TO LEASE AGREEMENT is made and entered into as of the
7 th day of October, 2004, between
RAINIER COMMONS, LLC, a Washington limited liability company
(“Lessor”), and TULLY’S COFFEE CORPORATION, a
Washington corporation (“Lessee”).
RECITALS
A. Pursuant to that certain Lease
Agreement dated August 16, 1999, entered into between Kent
Central, LLC (“KCL”) and Lessee, as modified by those
certain amendments described in the attached Exhibit B
(collectively, the “KCL Lease”), KCL agreed to lease to
Lessee certain premises as further described in the Lease (the
“Original Lease Premises”) on the real property located
at 3100 Airport Way South, Seattle, Washington, which is legally
described as set forth on the attached Exhibit A (the
“Property”). On July 17, 2003, Lessor purchased
the Property from KCL, and thereby assumed all of KCL’s
rights and obligations under the Lease. Lessor and Lessee modified
the lease by the Sixth Amendment to Lease Agreement dated as of
June 26, 2003, which became effective upon the July 17,
2003 closing of the purchase of the Property from KCL (the
“Sixth Amendment”) and further modified the lease by
the Seventh Amendment to Lease Agreement dated as of July 23,
2004 (the “Seventh Amendment”). The KCL Lease, as
modified by the Sixth Amendment and Seventh Amendment, is referred
to herein as the Lease.
B. Lessor and Lessee have agreed to
make certain modifications to the Lease on the terms and conditions
set forth in this Eighth Amendment to Lease Agreement (the
“Eighth Amendment”).
AGREEMENT
NOW, THEREFORE, in consideration of
foregoing and the promises made below, and other good and valuable
consideration, the parties agree as follows:
1. Definitions . Except as otherwise
stated in this Eighth Amendment, terms which are defined in the
Lease shall have the same meanings for this Eighth
Amendment.
2. Amendments . Effective as provided
herein, the Lease is hereby amended as follows:
2.1 Modifications of
Premises. Lessor and
Lessee wish to remove from the Tully’s Premises approximately
6,460 square feet of space as described on Exhibit E (the
“Building 5 and Building 5A Space” and to add
approximately 6,636 square feet of space as described on Exhibit E
(the “Building 8 Level 4 Space”) to the Tully’s
Premises, as follows:
a) Lessor shall make improvements to
the Building 8 Level 4 Space as provided in Exhibit F (the
“Building 8 Level 4 Improvements”). Lessor shall pay
all costs and expenses related to the Building 8 Level 4
Improvements. Lessor shall complete the
Building 8 Level 4 Improvements as
soon as reasonably practicable, but not later than October 31,
2004. Lessor shall notify Lessee in writing when the Building 8
Level 4 Improvements are completed (the “Building 8 Level 4
Availability Notice”) and shall provide Lessee with a copy of
any required certificates of occupancy at that time.
b) Lessee shall inspect the Building
8 Level 4 Space within three business days after receiving the
Building 8 Level 4 Availability Notice and the parties shall
jointly prepare a punch list as to any omissions or defects in the
Building 8 Level 4 Improvements requiring remedial action by
Lessor. Lessor shall remedy the punch list items. The Building 8
Level 4 Space shall be added to the Tully’s Premises and
removed from the Available Space, and may be occupied by Lessee,
commencing on the later of (i) the date of Lessee’s
inspection and (ii) the date of completion of remedial action
for all punch list items that would otherwise have prevented
occupancy.
c) Within fifteen business days
after the Building 8 Level 4 Space is added to the Tully’s
Premises, Lessee shall remove its property from the Building 5 and
Building 5A Space. Lessee shall notify Lessor in writing when
Lessee has completed the removal of its property (the
“Building 5 and Building 5A Vacancy Notice”). The
Building 5 and Building 5A Space shall be removed from the
Tully’s Premises as of the date of the Building 5 and
Building 5A Vacancy Notice, and thereafter the Building 5 and
Building 5A Space shall be included in the Available Space. Lessee
shall remove all of Lessee’s property from the Building 5 and
Building 5A Space as provided herein, but shall not be required to
make any other repairs or restoration to the Building 5 and
Building 5A Space and Lessor shall otherwise accept the Building 5
and Building 5A Space “as is.”
d) The modification of the
Tully’s Premises to include the Building 8 Level 4 Space and
to exclude the Building 5 and Building 5A Space shall not result in
any change to the amount of Rent and Monthly Operating Expenses
payable by Lessee under the Lease,
2.2 Modified Premises.
Exhibit C sets forth the
Tully’s Premises as provided in the Sixth Amendment. Upon
completion of the undertakings set forth in this Eighth Amendment,
the Tully’s Premises shall be as set forth in Exhibit D. The
square footage areas set forth in Exhibits C and Exhibit D are
approximations accepted by the parties for purposes of
administering the Lease and any remeasurement of these premises or
recomputation of square footage shall not result in any change to
the amount of Rent or Monthly Operating Expenses payable by Lessee
under the Lease.
2.3 Nitrogen Tanks.
Lessor consents to the placement by
Lessee of a nitrogen storage tank on the Property (the
“Tank”) at the location shown on Exhibit F attached
hereto, and to connect the Tank to the nitrogen gas transmission
lines on the Property, subject to the following:
a) Lessee shall be responsible for
obtaining any permits required to have the storage tank on the
Property and shall not place Tank on the Property until such
permits are received.
b) Lessee shall pay to Lessor any
increase in the cost of Lessor’s insurance as a result of the
presence on the Property of the nitrogen tank.
c) In the event that at any time,
the Tank is determined not to be in compliance with applicable
hazardous materials, fire, safety or building codes and regulations
(the “Codes”), Lessee shall take such remedial actions
as may be required to bring the Tank in compliance with the Codes,
or shall remove the Tank .
d) In the event that the location of
the Tank interferes with Lessor’s proposed use of the
Property, Lessee agrees to move the Tank to another location on the
Property, as selected by Lessor, and meeting Lessee’s
requirements, at Lessor’s cost, within thirty (30) days
after Lessor notifies Lessee in writing that the Tanks interfere
with Lessor’s proposed use of the Property and Lessor
identifies the new location.
e) Lessee shall indemnify, defend,
hold harmless and protect Lessor, its members, managers, employees,
officers, agents, and representatives (hereinafter the
“Indemnified Parties”) from and against any and all
losses, costs, expenses (including reasonable attorneys’
fees), obligations, liabilities, claims (including but not limited
to any claim for damage to property or injury or death of any
persons), whether direct, contingent or consequential and no matter
how arising, in any way related to or arising from the presence of
the Tank on the Property, with counsel chosen by Lessor.
3. No Other Changes
. Except as modified by
this Eighth Amendment and as otherwise agreed upon herein, all
other terms of the Lease, including without limitation all exhibits
thereto, remain unchanged and in full force and effect.
4. Conflict and Construction;
Definitions . In the
event of any conflict between the terms of this Eighth Amendment
and the terms of the Lease, the terms and provisions of this Eighth
Amendment shall prevail. Capitalized terms not otherwise defined in
this Eighth Amendment shall have the meanings set forth in the
Lease.
5. Successor and Assigns
. The terms and
provisions of this Eighth Amendment shall bind and inure to the
benefit of Lessor and Lessee and their respective successors and
assigns. This Eighth Amendment may not be assigned by either party
except in connection with an assignment of the Lease in accordance
with the terms of the Lease.
6. Counterparts; Facsimile
. This Eighth Amendment
of Lease A
