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OFFICE LEASE AGREEMENT
BETWEEN
XXXX FAMILY PARTNERSHIP, L.P. (LANDLORD)
AND
XXXXX ONLINE, INC. (TENANT)
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TABLE OF CONTENTS
1. Defined Terms; Lease Data; Exhibits ........................
1.1 Building and Premises .............................
1.2 Tenant's Pro Rata Share ...........................
1.3 Term, Commencement and Expiration .................
1.4 Rent ..............................................
1.5 Security Deposit ..................................
2. Premises ...................................................
3. Rent ...................................................
3.1 Tenant Payment ....................................
3.2 Basic Rent ........................................
4. Construction of Tenant Improvements ........................
5. Uses ...................................................
5.1 General Use .......................................
5.2 No Hazardous Materials ............................
6. Additional Rent ............................................
6.1 Tenant Payment ....................................
6.2 Definitions .......................................
6.3 Manner of Payment .................................
6.4 Proration .........................................
6.5 Landlord's Records ................................
6.6 Further Adjustments ...............................
7. Personal Property Taxes ....................................
8. Taxes on Rent ..............................................
9. Services by Landlord .......................................
10. Assignment and Subletting ..................................
11. Care of Premises ...........................................
12. Surrender of Premises; Removal of Property .................
13. Alterations ................................................
14. Entry and Inspection .......................................
15. Damage and Destruction .....................................
15.1 Damage and Repair .................................
15.2 Business Interruption .............................
15.3 Property of Tenant ................................
16. Indemnification ............................................
17. Insurance ..................................................
17.1 Liability Insurance ...............................
17.2 Property Insurance ................................
17.3 Workers' Compensation Insurance ...................
17.4 Insurance Policy Requirements .....................
17.5 Waiver of Subrogation .............................
18. Advertising and Signs ......................................
19. Insolvency and Liens .......................................
19.1 Insolvency ........................................
19.2 Liens .............................................
20. Condemnation ...............................................
20.1 Entire Taking .....................................
20.2 Partial Taking ....................................
20.3 Awards and Damages ................................
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21. Default; Remedies ..........................................
21.1 Events of Default .................................
21.2 Landlord Remedies for Tenant Default ..............
21.3 Cumulative Remedies ...............................
21.4 Right to Perform ..................................
21.5 Late Payments .....................................
21.6 Waiver of Redemption Rights .......................
22. Subordination to Mortgage ..................................
23. Holdover ...................................................
24. Agent ...................................................
25. Notices ...................................................
26. Costs and Attorneys' Fees ..................................
27. Estoppel Certificates ......................................
28. Limitation of Liability ....................................
29. Transfer of Landlord's Interest ............................
30. Nonwaiver ..................................................
31. Quiet Possession ...........................................
32. Security Deposit ...........................................
33. General ...................................................
33.1 Headings ..........................................
33.2 Successors and Assigns ............................
33.3 No Brokers ........................................
33.4 Entire Agreement ..................................
33.5 Severability ......................................
33.6 Force Majeure .....................................
33.7 Changes to Building ...............................
33.8 Building Directory ................................
33.9 Governing Law .....................................
33.10 Authority..........................................
33.11 Relocation Clause .................................
33.12 Landlord's Security Interest ......................
33.13 Tenant Representation .............................
33.14 Time Essence ......................................
33.15 Execution in Counterparts .........................
33.16 Joint and Several Liability .......................
33.17 Binding on Landlord ...............................
33.18 No Recording ......................................
33.19 Computation of Time ...............................
34. Option to Renew ..........................................
Notary ...................................................
Exhibit A Legal Description
Exhibit B Floor Plan
Exhibit C Tenant Improvements
Exhibit D Additional Provisions
Exhibit E Estoppel Certificate
Exhibit F Building Rules and Regulations
Exhibit G Parking Rules and Regulations
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OFFICE LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is dated as of the day of
January 28, 2000, and is entered into by and between Xxxx Family Partnership,
L.P. ("Landlord") and Xxxxx Online, Inc.,
Landlord and Tenant agree as follows:
1. DEFINED TERMS; LEASE DATA; EXHIBITS.
1.1 BUILDING AND PREMISES. The "Building" means that 24
building office park known as the Linbrook Office Park, situated on the real
property (the "Property") more particularly described in Exhibit A attached
hereto. The Building contains approximately 105,740 net rentable square feet.
The "Premises" means that space consisting of approximately 3,650 net rentable
square feet in Building 21 with a postal address of 00000 XX 00xx Xxxxxx,
Xxxxxxxx XX 00000, as outlined on the floor plan attached hereto as Exhibit B,
including tenant improvements as described in Exhibit C attached hereto.
1.2 TENANT'S PRO RATA SHARE. "Tenant's Pro Rata Share"
means three point four five percent (3.45 %), calculated by dividing the total
net rentable square feet of the Premises by the total net rentable square feet
of the Building.
1.3 TERM, COMMENCEMENT AND EXPIRATION DATES. The term of
this Lease (the "Lease Term") shall be approximately 33.61 months, commence on
the earlier of March 13, 2000, or the date Tenant takes possession of the
Premises (the "Commencement Date") and expiring on January 31, 2003, unless
earlier terminated as provided herein. The Lease Term means the entire term of
this Lease, including any extension or renewal terms.
1.4 RENT. Tenant shall pay to Landlord basic rent of
Seven Thousand Six Hundred Four Dollars ($7,604.00) per month, adjusted as
provided in Section 3.2 ("Basic Rent"). Tenant also shall pay as additional rent
all expenses allocable to the Premises in excess of the base rate amount (the
"Base Rate Amount") of NA per net rentable square foot in the Premises per year
as provided in Section 6 ("Additional Rent"). Tenant has deposited with Landlord
on the date hereof Seven Thousand Six Hundred Four Dollars ($7,604.00) to be
applied to Basic Rent first coming due under this Lease.
Effective Date of New Basic
Rent Increase Monthly Rent
02/01/01 $7,908.00
02/01/02 $8,213.00
1.5 SECURITY DEPOSIT. Tenant has deposited with Landlord
on the date Eight Thousand Two Hundred Thirteen Dollars ($8,213.00) as a
security deposit (the "Security Deposit") to be held and disbursed by Landlord
in accordance with Section 32.
1.6 EXHIBITS. Landlord and Tenant agree that this Lease
is further subject to the provisions of the attached Exhibits, which are listed
below. The provisions of the Exhibits are incorporated herein by this reference
and made a part of this Lease.
Exhibit A Legal Description
Exhibit B Floor Plan
Exhibit C Tenant Improvements
Exhibit D Additional Provisions
Exhibit E Estoppel Certificate
Exhibit F Building Rules and Regulations
Exhibit G Parking Rules and Regulations
2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord upon the terms and conditions set forth herein the Premises,
together with nonexclusive rights of ingress and egress over common areas in the
Building. Tenant acknowledges that neither Landlord nor any agent of Landlord
has made any representation or warranty with respect to the suitability or
fitness of either for the conduct of Tenant's business or for any other purpose.
The taking of possession or use of the Premises by Tenant for any purpose [other
than construction] shall conclusively establish that the Premises and the
Building were at such time in satisfactory condition, except as to any punchlist
items required to be accomplished by Landlord pursuant to Exhibit C as to which
Tenant shall have given Landlord written notice in reasonable detail within
reasonable detail within fifteen (15) days after Tenant takes such possession or
commences such use of the Premises. Nothing contained in this Section 2 shall
affect, defer or modify the commencement Date or the obligation of Tenant to pay
rent hereunder.
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3. RENT.
3.1 TENANT PAYMENT. Tenant shall pay Landlord without
notice Basic Rent, Additional Rent, and any other payments due hereunder
(collectively, "Rent"), from and after the Commencement Date, without deduction
or offset, in lawful money of the United States of America in advance on or
before the [first] day of each month (or at other dates specified in this Lease)
during the Lease Term at Landlord's address set forth on the signature page of
this Lease, or to such other party or at such other place as Landlord may
hereafter from time to time designate to Tenant in writing. Rent for any partial
month at the beginning or end of the Lease Term shall be prorated.
3.2 BASIC RENT ADJUSTMENT. Basic Rent shall be adjusted in
accordance with the schedule set forth in Section 1.4 of the Lease and Exhibit
D.
4. CONSTRUCTION OF TENANT IMPROVEMENTS. Improvements to the Premises
(the "Tenant Improvements") shall be constructed as provided in Exhibit C. If as
a result of the Provisions of Exhibit C the Commencement date is established at
an earlier date than the date provided in Section 1.3 above, then Landlord shall
confirm the actual Commencement Date to Tenant in a written notice. All Tenant
Improvements shall be and remain the property of Landlord.
5. USES.
5.1 GENERAL USE. The Premises shall be used only for general
office purposes, research and development of software products, and any other
purpose consistent with applicable zoning and the operation of an office and
service business building ("Permitted Use") and for no other business or other
purpose without the prior written consent of Landlord, which may be withheld in
Landlord's sole discretion. No act shall be done in or about the Premises that
is unlawful or that will increase the then existing rate of insurance on the
Building. Tenant shall not commit or allow to be committed any waste upon the
Premises, or any public or private nuisance or other act or thing in or about
the Premises that disturbs the quiet enjoyment of any other tenant in the
Building. Tenant shall not, without the prior written consent of Landlord, which
may be withheld in its sole discretion, use, operate or maintain any apparatus,
machinery, equipment or device in or about the Premises that will cause any
significant noise, increase electrical loads or usage, vibration or fumes or
disturb the quiet enjoyment of any other tenants in the Building. If any of
Tenant's office machines or operating should disturb the quiet enjoyment of any
other tenants in the Building, then Tenant shall cease operating such equipment
until it has provided adequate insulation or taken such other action as Landlord
shall require to eliminate the disturbance. Tenant shall comply with all laws
and regulations relating to its use or concerning Tenant's use or occupancy of
the Premises or related to the common areas of the Building as may be adopted by
Landlord from time to time and made available to Tenant.
5.2 NO HAZARDOUS MATERIALS. Tenants shall not use, dispose of
or otherwise allow the release of any Hazardous materials in, on or under the
Premises, the Building, the Property, or any adjacent property, or in any
improvements thereto, thereon or therein. Tenant represents and warrants to
Landlord that Tenant's intended use of the Premises does not involve the use,
production, disposal or bringing on to the Premises, the Building or the
Property of any Hazardous Materials. As used herein, the term "Hazardous
Materials" includes any substance, waste or material defined or designated as
hazardous, toxic or dangerous (or any similar term) by any federal, state or
local statute, regulation, rule or ordinance now or hereafter in effect. Tenant
shall promptly comply with all statutes, regulations and ordinances, and with
all orders, decrees or judgments of governmental authorities or courts having
jurisdiction, relating to the use, collection, treatment, disposal, storage,
control, removal or cleanup of Hazardous Materials in, on or under the Premises,
the Building, the Property or any adjacent property, or incorporated in any
improvements thereto, thereon, therein, at Tenant's expense.
After notice to Tenant and a reasonable opportunity for Tenant to
effect such compliance, Landlord may, but shall not be obligated to, enter upon
the Premises and take such actions and incur such costs and expenses to effect
such compliance as it deems advisable to protect its interest in the Premises.
However, Landlord shall not be obligated to give Tenant notice and an
opportunity to effect compliance if (i) such delay might result in material
adverse harm to Landlord, the Premises, the Building or the Property; (ii)
Tenant has already had actual knowledge of the situation and a reasonable
opportunity to effect compliance, or (iii) Landlord reasonably believes that an
emergency exists. Whether or not Tenant has actual knowledge of the release of
Hazardous Material on the Premises, the Building, the Property or any adjacent
property as the result of Tenant's use of the Premises, the Building or the
Property, Tenant shall reimburse Landlord for the full amount of all costs and
expenses incurred by Landlord relating to such Hazardous Materials or in
connection with such compliance activities. Tenant shall notify Landlord
immediately of any release of any Hazardous Materials on the Premises of which
Tenant is aware.
Tenant agrees to indemnify and hold harmless Landlord against any and
all losses, liabilities, suits, obligations, fines, damages, judgments,
penalties, claims, charges, cleanup costs, remedial actions, costs and expenses
(including, without limitation, attorneys' and other professional fees and
disbursements) that may be imposed on, incurred or paid by, or asserted against
Landlord, the Premises, the Building, or the Property by reason of, or in
connection with (i) any misrepresentation, breach of warranty or other default
by Tenant under this Section 5.2, or (ii) the acts or omissions of Tenant, its
officers, contractors, subcontractors, licensees, agents, servants, employees,
guests, invitees or visitors, or any assignee or sublessee or other person for
whom Tenant would otherwise be liable, resulting in the release of any Hazardous
Materials. All of Tenant's obligations and liabilities under this Section 5.2
shall survive expiration or other termination of this Lease and shall be
separately enforceable by Landlord.
Landlord certifies that to the best of their knowledge and belief the
Premises are free from Asbestos.
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6. ADDITIONAL RENT.
6.1 TENANT PAYMENT. In addition to Basic rent, Tenant shall
pay to Landlord as Additional Rent, from and after the Commencement Date in the
manner described below, an amount equal to the Actual Expenses Allocable to the
Premises for all increases in Operating Expenses and Real Property Taxes that
exceed the Base Year Amount.
6.2 DEFINITIONS.
6.2.1 "Operating Expenses" shall mean all expenses
paid or incurred by Landlord for maintaining, operating and repairing the
Building, the Property, any parking structure serving the Building and related
improvements adjacent to the Building that serve the tenants of the Building
including without limitation, signage, sidewalks, terraces, parking, loading or
delivery areas and landscaping and the personal property used in conjunction
therewith (collectively, the "Building Complex"), including, without limitation,
the costs of refuse collection, water, sewer, electricity, gas and other
utilities, supplies, janitorial and cleaning services, window washing,
landscaping maintenance, services of independent contractors, compensation
(including employment taxes and fringe benefits) of all persons who perform
duties in connection with the operation, maintenance and repair of the Building
Complex, insurance premiums on insurance as Landlord in its sole discretion
elects to carry, licenses, permits and inspection fees, management fees, real
property taxes (as defined below), legal and accounting expenses, amortization
of capital improvements constructed after completion of the Building Complex,
and any other expense or charge whether or not herein above described, which in
accordance with generally accepted accounting and property management practices
would be considered an expense of maintaining, operating or repairing the
Building Complex, but excluding:
6.2.1.1 Costs of any special services rendered or
equipment or materials provided or expenses attributable to individual tenants
(including Tenant) for which a special charge is made to that tenant;
6.2.1.2 Costs of electrical, heating, cooling and
combined utility services to the extent that such services are separately
metered to the Premises and paid directly by Tenant.
Landlord may construct, and "Operating Expenses" shall include, any
additional capital improvements to the Building Complex common areas to enhance
the character, utility, or operating efficiency of the Building Complex, as
reasonably determined by Landlord, but the amount of the capital improvements
costs included in the Operating Expenses for any Lease Year shall be limited to
the annual amortized amount of the capital improvements determined by dividing
the capital improvement costs by the useful life of the capital improvements.
6.2.2 "Real Property Taxes" shall mean real and
personal property taxes, assessments (including local improvement or special
benefit districts), and all other governmental impositions and charges of every
kind and nature, including surcharges, now or hereafter imposed with respect to
the Building Complex, or any portion thereof, including, without limitation, all
tenant improvements, and all improvements, fixtures, and equipment to, on or in
the Building Complex, and/or the use, occupancy or possession thereof; taxes on
Property of Tenant (as defined in Section 7), which have not been paid by Tenant
directly to the taxing authority; and any taxes levied or assessed in addition
to, in lieu of, or as a substitute for, in whole or part, taxes now levied or
assessed or any other tax upon owning, leasing or rents receivable by Landlord
from the Building Complex, but excluding any federal, state or local income tax
or inheritance, gift, succession or franchise taxes imposed on Landlord.
6.2.3 "Lease Year" shall mean each 12-month period
commencing January 1 and ending December 31, or any portion thereof, during the
Lease Term.
6.2.4 "Actual Expenses" shall mean the actual
expenses paid or incurred by Landlord for Operating Expenses and Real Property
Taxes during any Lease Year.
6.2.5 "Actual Expenses Allocable to the Premises"
shall mean Actual Expenses multiplied by Tenant's Pro Rata Share.
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6.2.6 "Estimated Expenses Allocable to the Premises"
shall mean Landlord's estimate of Actual Expenses Allocable to the Premises for
the following Lease Year to be given by Landlord to Tenant pursuant to Section
6.3.1 below.
6.2.7 "Base Year" as used in this Lease means, for
the Term, the calendar year 2000 and, for each Extended Term, the Lease Year in
which the Extended Term falls. Electrical and janitorial expenses included in
Operating costs for the base Year shall be adjusted by Landlord to fairly
reflect ninety-five percent (95%) occupied on January 1 of the Base Year.
6.3 MANNER OF PAYMENT. Tenant's payment of Additional rent shall be
made as follows:
6.3.1 Prior to the commencement of each Lease Year,
Landlord shall furnish Tenant a written statement of the Estimated Expenses
allocable to the premises for such Lease Year, and a calculation of Additional
rent as follows: One-twelfth (1/12) of the amount, if any, by which Estimated
Expenses Allocable to the Premises exceeds the Base Amount, which excess amount
shall be additional Rent payable by Tenant for each month during such Lease
Year. If at any time or times during such Lease Year it reasonably appears to
Landlord that the Actual Expenses Allocable to the Premises shall vary from
Estimated Expenses Allocable to the Premises by more than five percent(5%) on an
annual basis, then Landlord by written notice to Tenant may revise the Estimated
Expenses Allocable to the Premises for such Lease Year and Additional Rent
payments by Tenant for such Lease Year shall thereafter be equal to one-twelfth
(1/12) of the amount by which such revised Estimated Expenses Allocable to the
Premises exceed the Base Amount.
6.3.2 Within ninety (90) days after the end of each
Lease Year, or as soon thereafter as practicable, Landlord shall provide a
statement (the "Statement") to Tenant showing: (a) the amount of Actual Expenses
Allocable to the Premises during the prior Lease Year, with a listing of amounts
for Real Property Taxes and major categories of Operating Expenses; (b) any
amount paid by Tenant as Additional Rent during such prior Lease Year; and (c)
any revision to the Estimated Expenses Allocable to the Premises for the current
Lease Year.
6.3.3 If the Statement shows Tenant's payments were
less than the excess of Actual Expenses Allocable to the premises for the prior
Lease Year over the Base Amount, then Tenant shall promptly pay to Landlord the
difference. If the Statement shows an increase in Estimated Expenses Allocable
to the Premises for the current Lease Year, then Tenant's Additional Rent
payments for the balance of the Lease Year shall be equal to one-twelfth (1/12)
of the amount by which such increased Estimated Expenses Allocable to the
Premises exceeds the Base Amount, and Tenant shall pay the difference between
the new and former estimates for the period from January 1 of the current Lease
Year through the month in which the Statement is sent. Tenant shall pay any such
difference within thirty (30) days after Landlord sends the Statement.
6.3.4 If the Statement shows that Tenant's payments
exceeded the amount by which Actual Expenses Allocable to the Premises exceeded
the Base Amount, then Tenant shall receive a credit in the amount of the
difference against payments of Rent next due. If the Lease Term shall have
expired and no further Rent shall be due, Tenant shall receive a refund in the
amount of such difference within (30) days after Landlord sends the Statement.
6.3.5 So long as Tenant's obligations hereunder are
not materially adversely affected thereby, Landlord reserves the right to
reasonably change, from time to time, the manner or timing of the foregoing
payments. In lieu of providing one (1) Statement covering Operating Expenses and
Real Property Taxes, Landlord may provide separate statements, at the same or
different times. No delay by Landlord in providing the Statement (or separate
statements) shall be deemed a default by Landlord or a waiver of Landlord's
right to require payment of Tenant's obligations for actual or estimated
Operating Expenses and Real Property Taxes.
6.4 PRORATION. If the Lease Term commences on a date other than January
1, or ends on a date other than December 31, Tenant's obligations to pay
estimated and actual amounts toward Additional Rent for such first or final
calendar year shall be prorated to reflect the portion of such year(s) included
in the Lease Term. Such Proration shall be made by multiplying (i) the Base
Amount (as stated on an annual basis) and (ii) the total Estimated or Actual
Expenses Allocable to the Premises for such calendar year(s) by a fraction the
numerator of which is the number of days of the Lease Term during such calendar
year and the denominator of which is 365.
6.5 LANDLORD'S RECORDS. The determination of Additional Rent shall be
made by Landlord. Landlord or its agents shall keep records in reasonable detail
showing all expenditures made or items enumerated above, which records shall be
available for inspection at Landlord's offices by Tenant. All costs of such
inspection shall be borne solely by Tenant, and at the Landlord's premises
conducted during Landlord's normal business hours. Tenant is entitled to audit
Landlord's records one (1) time per year and only for the preceding Lease Year
as defined in Section 6.2.3 Inspection of Landlord's records must be conducted
within one hundred twenty (120) days of receiving the "Statement". Furthermore,
any audit cannot be performed using a contingency basis auditor and all
information reviewed is to be kept strictly confidential between Landlord and
Tenant.
6.6 FURTHER ADJUSTMENT. In the event the average occupancy level of the
Building for any Lease Year was or is not ninety-five percent (95%) or more of
full occupancy, then Actual Expenses and Landlord's estimate thereof for such
Lease Year shall be proportionately adjusted by Landlord to reflect those costs
that would have occurred had the Building been ninety-five percent (95%)
occupied during such Lease Year.
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7. PERSONAL PROPERTY TAXES. Tenant shall pay, prior to delinquency, all
Personal Property Taxes (as defined below) payable with respect to all Property
of Tenant (as defined below) located on the Premises or in the Building Complex
and promptly upon request of Landlord shall provide written proof of such
payment. As used herein, "Property of Tenant" shall mean and include, without
limitation, all personal property of Tenant including inventory, equipment,
floor, ceiling and wall coverings, furniture and trade fixtures kept or used on
or installed in the Premises and any Tenant Improvements and other improvements
to the Premises that are owned by and separately assessed to Tenant. "Personal
Property Taxes" shall include all property taxes assessed against the Property
of Tenant, whether assessed as real or personal property.
8. TAXES ON RENT. The Rent provided for in this Lease is exclusive of
any sales or other tax or charge upon, based upon or measured by rents payable
to Landlord hereunder, or any tax or other charge based upon or measured by the
number of employees of Tenant, or any other tax that is not currently in effect.
If during the Lease Term any such tax or other charge becomes payable by
Landlord to any governmental authority, the Rent hereunder shall be deemed
increased by such amount upon thirty (30) days' written notice by Landlord to
Tenant. The foregoing does not apply to federal, state or local income, gross
receipts, inheritance, gift, succession or franchise taxes payable by Landlord.
9. SERVICES BY LANDLORD. Landlord will provide those services to the
Premises and the Building that are customary to similar office buildings in the
greater Seattle area, including without limitation electricity for lighting and
low-power usage office machines; water and sewer; and mechanical, cooling,
heating and ventilation at such times as Landlord normally furnishes this
service to other tenants of the Building, but in no event less than "Normal
Business Hours" (as defined as below), and at such temperatures and in such
amounts as are reasonably standard for office buildings in the greater Seattle
area. Building access, electricity as described above, water, sewer, and parking
if and as described in Exhibit D shall be available at all times. The cooling,
heating and ventilation system shall be available during Normal Business Hours.
"Normal Business Hours" shall be from 5:00a.m. to 6:00p.m. on weekdays, and
8:00a.m. to 1:00p.m. on Saturdays, excluding legal holidays (New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas and days
associated therewith). Landlord also shall provide daily (i.e., five days per
week) janitorial service, lamp replacement for Landlord-furnished lighting,
toilet room supplies and perimeter window washing, all with reasonable frequency
customary to office buildings in the greater Seattle area. Landlord shall
provide cooling, heating and ventilation at times other than Normal Business
Hours upon Tenant's request and with reasonable notice to Landlord, and Tenant
shall pay the reasonable cost thereof. Landlord shall provide keys or other
appropriate access devices that will allow Tenant access to the Premises at all
times. Unless charged to individual tenants (including Tenant) as herein
provided, the costs of such Landlord services described in this Section 9 shall
be included as "Operating Expenses" and paid as Additional Rent pursuant to
Section 6. Landlord shall not be liable for any loss or damage caused by or
resulting from any variation, interruption or failure of such services due to
any cause whatsoever, and no temporary interruption or failure of such services
incident to the making of repairs, alterations or improvements or due to
accident or strike conditions shall be deemed an eviction of Tenant or relieve
Tenant from any of Tenant's obligations hereunder. For those services within
Landlord's reasonable control, Landlord will correct any interruption of
services as soon as practicable.
If Tenant has special mechanical, cooling, heating, ventilation,
electrical or other requirements, then the cost of furnishing, installing,
operating and maintaining the equipment and appurtenances (including separate
meters if requested by Landlord to satisfy these requirements) shall be borne by
Tenant, with Tenant either paying directly to the utility if separately metered
or paying to Landlord, as Rent, the reasonable cost of providing such additional
services. In addition, if the Premises are separately metered and charged for
some or all utilities or services (e.g. separate electric meter or gas meter),
then regardless of whether Tenant is engaged in special usage, Landlord may
elect to have Tenant contract with and pay directly the utility or service
provider. In any such case of individual metering and Premises-specific charges
of utilities or services. Operating Expenses for purposes of calculating
Tenant's Share of Operating Expenses shall not include the cost of providing
such utilities or services to other tenants of the Project (but will continue to
include the cost of providing such utilities or services to the Common Areas).
The Building standard mechanical system is designed to accommodate
heating loads generated by lights and standard office automation equipment.
Before installing lights or equipment in the Premises, which in the aggregate
exceed reasonable and customary loads, Tenant shall obtain the written
permission of Landlord. Landlord may refuse to grant such permission unless
Tenant shall agree to pay Landlord's costs to install supplementary air
conditioning capacity or electrical systems as necessitated by such equipment or
lights or if the equipment or lights requested by Tenant will, in Landlord's
reasonable judgment, overburden the Building's structure or mechanical system(s)
even if supplemented at Tenant's expense.
10. ASSIGNMENT AND SUBLETTING. Tenant shall not cause or permit,
directly or indirectly, voluntarily or involuntarily, any of the following
events (individually and collectively, a "Transfer") (or any amendment to the
instrument affecting the same) without in each case first obtaining Landlord's
written consent, which shall not be unreasonably withheld: (1) a sale,
assignment, hypothecation, mortgage, encumbrance, conveyance or other transfer
of this Lease (or any interest therein); (2) a sublease of the Premises or any
portion thereof; or (3) the use or occupancy of the Premises or any portion
thereof by anyone other than Tenant. No transfer shall relieve Tenant of any
liability under this Lease. Landlord's consent to any Transfer shall not operate
as a waiver of the necessity for consent to any subsequent Transfer. If such
consent is requested, Landlord reserves the right to terminate this Lease, or,
if consent is requested for subletting less than the entire Premises, to
terminate this Lease with respect to the portion for such consent is requested,
at the proposed effective date of the Transfer, in which event Landlord shall
have the right (but not the obligation) to enter into the relationship of
Landlord and tenant with any such assignee, subtenant or transferee, based on
the rent (and /or other consideration) and all other terms agreed to by such
assignee, subtenant or transferee and otherwise upon the terms and conditions of
this Lease. If Tenant assigns this Lease or sublease the Premises or portions
thereof for more than the Rent then payable under this Lease with Landlord's
consent as described above Tenant shall pay to Landlord the entire excess amount
of
Landlord [INITIALS ILLEGIBLE]
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Tenant D.H.
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rent or other consideration, as and when received by Tenant, as Rent hereunder.
If Tenant is a corporation, any transfer of this Lease by merger, consolidation
or liquidation, or any change in the ownership of, or power to vote, a majority
of its outstanding voting stock (including redemption thereof) shall constitute
a Transfer, and in such event, Landlord's approval shall not be unreasonably
withheld. If Tenant is a partnership, any transfer of this Lease by merger,
consolidation, liquidation or dissolution of the partnership, or any change in
the ownership of a majority of the partnership interests shall constitute a
Transfer. As a condition to Landlord's approval, any potential assignee
otherwise approved by Landlord shall assume and shall assume and shall be
jointly and severally liable with Tenant for all obligations of Tenant under
this Lease with respect to the portion of the Premises that is subleased to such
sublessee. This Lease shall not be assigned by operation of law.
11. CARE OF PREMISES. Tenant shall keep the Premises in a neat, clean
and sanitary condition and shall at all times preserve them in good condition
and repair, ordinary wear and tear or damage due to casualty or condemnation
excepted. If Tenant shall fail to do so, Landlord may at its option place the
Premises into said condition and state of repair, and in such case Tenant on
demand shall pay or reimburse Landlord for the costs thereof. Tenant shall
reimburse Landlord for the cost of replacing all broken glass with glass of same
or similar quality.
12. SURRENDER OF PREMISES; REMOVAL OF PROPERTY. Subject to the terms of
Section 15 relating to damage and destruction, upon expiration or termination of
the Lease Term, whether by lapse of time or otherwise (including any holdover
period), Tenant at its expense shall: (1) remove Tenant's goods and effects and
those of all persons claiming under Tenant, and (2) repair and restore the
Premises to a condition as good as received by Tenant from Landlord or as
thereafter improved, reasonable wear and tear excepted, and (3) promptly and
peacefully surrender the Premises (including surrender of all tenant, except
Tenant's trade fixtures that do not become part of the Building). If Tenant
causes the Premises to be improved with other than Building standard ceiling
suspension system, fluorescent light fixtures, mechanical cooling, heating and
ventilation units, millwork detail, doors, door xxxxx, hardware or hard surface
floor tile and base, then at Landlord's option Tenant shall pay Landlord an
amount equal to the cost to replace all such nonstandard items with Building
standard items. Any property left on the Premises after the expiration or
termination of the Lease Term shall be deemed to have been abandoned and to have
become the property of Landlord to dispose of as Landlord deems expedient, and
Tenant shall be liable for all costs associated with the disposal of such
property. Tenant hereby waives all claims for damages that may be caused by
Landlord's reentering and taking possession of the Premises or removing and
storing Tenant's property as herein provided, and Tenant shall indemnify and
hold harmless Landlord therefrom. No such reentry shall be considered or
construed to be a forcible entry.
13. ALTERATIONS. Tenant shall make no additions, changes, alterations
or improvements ("Work") to the Premises or any electrical, mechanical or fire
protection facilities pertaining to the Premises without the prior written
consent of Landlord. All Work shall be at Tenant's sole cost and shall be
performed in a good and workmanlike manner and all materials used shall be of a
quality comparable to those in the Premises and the Building and shall be in
accordance with plans and specifications approved by Landlord, and Landlord may
require that all Work be performed under Landlord's supervision. In any case,
Tenant shall pay Landlord a reasonable fee to cover Landlord's overhead or
third-party costs in reviewing Tenant's plans and specifications and performing
any supervision of Work. Tenant shall maintain a safe working environment,
including the continuation of all fire and security protection devices, if any,
previously installed in the Premises by Landlord. All damages or injury done to
the Premises or the Building Complex by Tenant or by any persons who may be in
or upon the Premises or the Building Complex with the express or implied consent
of Tenant, including but not limited to the cracking or breaking of any glass
windows and doors, shall be paid for by Tenant and Tenant shall pay for all
damage to the Building Complex caused by acts or omissions of Tenant or Tenant's
officers, contractors, subcontractors, agents, invitees, licensees, employees,
successors or assigns. If Landlord consents to or supervises any Work by Tenant,
the same shall not be deemed a warranty as to the adequacy of the design,
workmanship or quality of materials, and Landlord hereby expressly disclaims any
responsibility or liability for the same, except with respect to Landlord's
intentional misconduct. Landlord shall under no circumstances have any
obligation to repair, maintain or replace any portion of any Work. All
alterations, additions and improvements except Tenant's trade fixtures that do
not become a part of the Building shall remain in an be surrendered with the
Premises as a part thereof at the expiration or sooner termination of this
Lease. Tenant shall comply with all applicable laws, codes and regulations in
connection with all Work.
14. ENTRY AND INSPECTION. Landlord at all reasonable times and with
reasonable prior notice (and at any time in case of emergency) may enter the
Premises for the purpose of inspection, cleaning, repairing, altering or
improving the Premises or the Building subject to Tenant's reasonable security
requirements. Nothing in this Section 14 shall impose upon Landlord any
obligation not expressly imposed elsewhere in this Lease. Landlord shall have
the right at reasonable times to enter the Premises for the purpose of showing
the Premises to any fee owners, ground lessors, holders of encumbrances on the
interest of Landlord and any prospective purchasers, mortgagees, ground lessors
or tenants of the Building or a portion thereof. If during the last month of the
Lease Term Tenant shall have removed substantially all of Tenant's property and
personnel from the Premises, Landlord may enter the Premises and repair, alter
and redecorate the same without abatement of Rent and without liability to
Tenant, and such acts shall have no effect on this Lease.
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15. DAMAGE OR DESTRUCTION.
15.1 DAMAGE AND REPAIR. In case of damage to the Premises or
the Building by fire or other casualty, Tenant immediately shall notify
Landlord. If the Building is damaged by fire or any other cause to such extent
that the cost of restoration, as reasonably estimated by Landlord, will equal or
exceed thirty percent (30%) of the replacement value of the Building (exclusive
of foundations)just prior to the occurrence of the damage, or if insurance
proceeds sufficient for full restoration are unavailable for any reason, then
Landlord no later than the sixtieth (60th) day following the damage may give
Tenant notice of election to terminate this Lease. In the event of such election
this Lease shall surrender possession of the Premises within a reasonable time
thereafter, and Rent shall be apportioned as of the date of Tenant's surrender
and any Rent paid for any period beyond such date shall be repaid to Tenant. If
the cost of restoration as estimated by Landlord shall amount to less than
thirty (30%) percent of said replacement value of the Building and insurance
proceeds sufficient for restoration are available, or if Landlord does not elect
to terminate this Lease under the second sentence of this Section 15.1, then
Landlord shall restore the Building and Premises (to the extent of the Tenant
Improvements originally provided by Landlord hereunder) with reasonable
promptness, subject to delays beyond Landlord's control and delays in the making
of insurance adjustments by Landlord, and Tenant shall have no right to
terminate this Lease. To the extent that the Premises are rendered untenantable,
Rent shall proportionally xxxxx during the period of such untenantability,
unless such damage resulted from or was contributed to directly or indirectly by
the act, fault or neglect of Tenant, Tenant's officers, contractors,
subcontractors, agents, employees, invitees or licensees, in which case Rent
shall xxxxx only to the extent Landlord receives proceeds from any rental income
insurance policy to compensate Landlord for a loss of Rent hereunder.
15.2 BUSINESS INTERRUPTION. No damages, compensation or claims
shall be payable by Landlord for inconvenience, loss of business or annoyance
arising from any repair or restoration of any portion of the Premises or the
Building. Landlord shall use reasonable efforts to effect any such repairs
promptly.
15.3 PROPERTY OF TENANT. Landlord will not carry insurance of
any kind on any property of Tenant, including inventory, equipment, floor,
ceiling and wall coverings, furniture and trade fixtures, and any Tenant
Improvements and other improvements to the Premises that are paid for by Tenant
and Landlord shall be obligated to repair any damage thereto or replace the
same.
16. INDEMNIFICATION.
Tenant shall indemnify, hold harmless and defend Landlord from and
against all liabilities, damages, suits, obligations, fines, losses, claims,
actions, judgments, penalties, charges, costs, or expenses, including, without
limitation, attorneys' and other professional fees and disbursements
(collectively, "Liabilities"), in conjunction with any loss of life, personal
injury and/or property damage arising out of or relating to the occupancy or use
by Tenant or any part of the Premises or the Building Complex occasioned wholly
or in part by any act or omission of Tenant or its officers, contractors,
subcontractors, licensees, agents, servants, employees, or any assignee or
sublessee. Landlord shall not be liable for any loss or damage to persons or
property sustained by Tenant or other persons, which may be caused by theft, or
by any act or neglect of any tenant or occupant of the Building or any other
third parties. Notwithstanding the foregoing, for those Liabilities arising from
activities to which RCW 4.24.115 is held to be applicable, (i) Tenant shall have
no liability for any such Liabilities caused by or resulting from the sole
negligence of Landlord for its agents or employees and (ii) for any such
Liabilities that arise out of the concurrent negligence of Landlord or its
agents or employees and Tenant or its agents or employees, Tenant shall be
liable under this indemnity provision only to the extent of the negligence of
Tenant or its agents or employees.
17. INSURANCE.
17.1 LIABILITY INSURANCE. Throughout the Lease Term Tenant, at
its own expense, shall keep and maintain in full force and effect a policy of
commercial general liability insurance including a contractual liability
endorsement covering Tenant's obligations under Sections 16, insuring Tenant's
activities upon, in and about the Premises and the Building Complex against
claims of bodily injury or death or property damage or loss with a limit of not
less than One Million Dollars ($1,000,000) combined single limit per occurrence
and Two Million Dollars ($2,000,000) in the aggregate (per policy year). In no
event shall the deductible under such policy be in excess of One Thousand
Dollars ($1,000).
17.2 PROPERTY INSURANCE Throughout the Lease Term Tenant, as
its own expense, shall keep and maintain in full force and effect what is
commonly referred to as "all risk" coverage insurance or its equivalent (but
excluding earthquake and flood) on all property of Tenant, including inventory,
equipment, floor ceiling and wall coverings, furniture and trade fixtures, and
any Tenant Improvements and other improvements to the Premises that are paid for
by Tenant in an amount not less than the then current One Hundred Percent (100%)
replacement value thereof.
17.3 WORKERS' COMPENSATION INSURANCE. Throughout the Lease
Term Tenant, at its own expense, shall keep and maintain in full force and
effect workers' compensation insurance in an amount equal to at least the
minimum statutory amount then currently required in the State of Washington.
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17.4 INSURANCE POLICY REQUIREMENTS. All insurance required
under this Section 17 shall be with companies rated AX or better in Best's
Insurance Guide and who are qualified to do business in the State of Washington.
Tenant may, with the prior written consent of Landlord, elect to have reasonable
deductibles in connection with the policy required Section 17.2 above. No
insurance policy required under this Section 17 shall be canceled or reduced in
coverage and each insurance policy shall provide that it is not subject to
cancellation or material alteration except after thirty (30) days prior written
notice to Landlord. Tenant shall deliver to Landlord prior to Commencement Date
and from time to time thereafter, copies of policies of such insurance or
certificates evidencing the existence and amounts of same and, with the
exception of the policy required under Section 17.3, naming Landlord as an
additional insured thereunder, and each policy or certificate shall expressly
provide that the interest of Landlord therein shall not be affected by any
breach by Tenant of any provision of such policy or the policy for which such
certificate evidences coverage. Further, all certificates shall expressly
provide that the coverage evidenced thereby shall be primary and that any
policies carried by Landlord shall be excess and noncontributory with such
primary insurance. The limits of any required insurance policy shall not limit
the liability of Tenant under this Lease.
17.5 WAIVER OF SUBROGATION. Notwithstanding any other
provisions to the contrary herein, Landlord and Tenant release each other, their
agents and employees from liability and waive all right of recovery against each
other for any loss from perils insured against under their respective policies
for damage caused by fire or other perils (including those covered by all risk
extended coverage) that are covered by insurance, regardless of any fault or
negligence. Each party shall use reasonable efforts to cause its insurance
carriers to consent to the foregoing waiver of rights of subrogation against the
other party. The waiver of subrogation provided herein shall apply to the full
extent, but only to the extent, that the same shall be valid and enforceable
without impairment of insurance coverage.
18. ADVERTISING AND SIGNS. Tenant shall not place on the exterior of
the Premises or the Building, or on any exterior door or wall or the exterior
door or wall or the exterior or interior of any window thereof, or on any part
of the interior of the Premises visible form the exterior thereof, any sign or
advertising matter and shall not place any decoration, letter or other thing of
any kind on the glass of any window or door of the Premises, without the prior
written consent of Landlord. With respect to any sign or advertising matter or
decoration approved by Landlord, Tenant at its sole cost and expense shall
maintain the same in good condition and repair at all times. Landlord hereby
reserves the exclusive right to remove temporarily Tenant's sign during any
period when Landlord repairs, restores, constructs or renovates the Premises or
the Building. Landlord shall have the right to prohibit any advertising by
Tenant that, in Landlord's opinion, tends to impair the reputation of the
Building as a first class office building. Upon the expiration or sooner
termination of this Lease, Tenant at Landlord's request shall remove all signs,
advertising matters or decorations at its sole cost and expense and repair any
resulting damage to the Premises and the Building.
19. INSOLVENCY AND LIENS.
19.1 INSOLVENCY. If Tenant becomes insolvent or voluntarily
bankrupt, or if a receiver, trustee or other liquidating officer is appointed
for the business of Tenant, Landlord at its option may terminate this Lease and
Tenant's right of possession under this Lease and in no event shall this Lease
or any rights or privileges hereunder be an asset of Tenant in any bankruptcy,
insolvency or reorganization proceeding, or Landlord may treat such insolvency
as a default under Section 21 of this Lease and invoke any and all remedies
available thereunder. In the event of an assumption or assignment by operation
of law under the Federal Bankruptcy Code or any state bankruptcy or insolvency
law and Landlord elects not to terminate this Lease (or is otherwise prevented
from electing to terminate this Lease), the trustee in assuming this Lease or
any assignee thereof shall (a) remedy Tenant's prior default under this Lease,
(b) be bound by and assume all of the terms and conditions of this Lease, (c)
provide adequate assurances of future performance of all the terms, conditions
and covenants of this Lease, which shall include making the following express
covenants to the Landlord: (1) there is sufficient capital to pay all Rent due
under the Lease for the entire Lease Term, (2) assumption of the Lease by any
assignee will not cause Landlord to be in violation or breach of any provision
of any other lease, finance agreement, security instrument or operating
agreement concerning the Building or the Property, and (3) such assumption or
assignment by the assignee will not substantially disrupt or impair any existing
tenant mix or development plans for the Building or the Property.
19.2 LIENS. Tenants shall not permit any lien to be filed
against the Premises, the Building or the Property by reason of obligation
incurred by or on behalf of Tenant. Tenant hereby indemnifies and holds
Landlords harmless from any liability from any such lien. If any lien is filed
against the Premises, the Building or the Property by any person claiming by,
through or under Tenant, Tenant shall upon request of Landlord, at Tenant's
expense, immediately cause such lien to be released; or, at Landlord's election,
furnish to Landlord a bond in form and in an amount of not less than One Hundred
Fifty Percent (150%) of said lien and issued by a surety satisfaction to
Landlord, indemnifying Landlord, the Building and the Property against all
liability, cost and expenses, including attorneys' fees, which Landlord may
incur as a result thereof. Provided that such bond has been furnished to
Landlord, Tenant, at its sole cost and expense and after written notice to
Landlord, may contest, by appropriate proceedings conducted in good faith and
with due diligence, any lien, encumbrance or charge against the Premises arising
from work done or materials provided to and for Tenant, if, and only if, such
proceedings suspend the collection thereof from Landlord, Tenant and the
Premises, and neither the Premises, the Building, the Property nor any part
thereof or interest therein is or will be in any danger of being sold, forfeited
or lost.
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20. CONDEMNATION.
20.1 ENTIRE TAKING. If all of the Premises or the Building or
such portions of the Building as may be required for the reasonable use of the
Premises, are taken by eminent domain or conveyance in lieu thereof, this Lease
shall automatically terminate as of the date title vests in the condemning
authority and all Rent shall be paid to that date.
20.2 PARTIAL TAKING. In the event of a taking of a part of the
Building other than the Premises or of a portion of the Property, and if
Landlord determines that the Building should be restored in such a way as to
alter the Premises materially, Landlord may terminate this Lease and the term
and estate hereby granted by notifying Tenant of such termination within sixty
(60) days following the date of vesting of title; and this Lease and the term
and estate hereby granted shall expire on the date specified in the notice of
termination, not less than sixty (60) days after the giving of such notice, as
fully and completely as if such date were the date hereinbefore set forth for
the expiration of the Lease Term, and Rent hereunder shall be apportioned as of
such date. Subject to the foregoing provisions of this Section 20.2, in case of
taking of a part of the Premises, or a portion of the Building or the Property
not required for the reasonable use of the Premises, then this Lease shall
continue in full force and effect and the Rent shall be equitably reduced based
on the proportion by which the net rentable area of the Premises is reduced (or
if one of the Premises is taken, based on the proportion by which the use of the
Premises is materially reduced), such Tent reduction to be effective as of the
date title to such portion vests in the condemning authority.
20.3 AWARDS AND DAMAGES. Landlord reserves all rights to
damages to the Premises for any partial or entire taking by eminent domain, and
Tenant hereby assigns to Landlord any right Tenant may have to such damages or
award (except for Property of Tenant as defined in Section 7), and the Tenant
shall make no claim against Landlord or the condemning authority for damages for
termination of the leasehold interest. Tenant shall have the right however, to
claim and recover from the condemning authority compensation for any loss to
which Tenant may be put for Tenant's moving expenses, business interruption or
taking of Property of Tenant (not including Tenant's leasehold interest), but
only to the extent that such loss is awarded separately in the eminent domain
proceeding and not out of or as part of the damages recoverable by Landlord.
21. DEFAULT; REMEDIES.
21.1 EVENTS OF Default. Each of the following shall be deemed a default
by Tenant and a material breach of this Lease:
21.1.1 Failure by Tenant to pay when due any rent hereunder if
such failure shall continue for a period of five (5) days after written notice
thereof has been given to Tenant; or
21.1.2 Failure by Tenant to perform or observe any of the other
terms, covenants. conditions, agreements or provisions of this Lease if such
failure shall continue for a period of fifteen (15) days after written notice
thereof has been given to Tenant; provided, however, that if any such failure
cannot reasonably be cured within such fifteen (15) day period, then Tenant
shall not be deemed to be in default if Tenant commences to cure such failure
within a reasonable time not to exceed fifteen (15) days and for as long as
Tenant is diligently prosecuting the cure thereof up to a total of thirty (30)
days after the notice from Landlord has been given; or
21.1.3 Any misrepresentation or material omission of
information made by Tenant orally to Landlord or in any documents or other
materials provided by Tenant to Landlord in connection with this Lease; and
21.1.4 Any vacation or abandonment by Tenant of the Premises.
As used herein "vacation" shall mean a prolonged absence from the Premises, and
"abandonment" shall mean an absence from the Premises of five (5) days or more
while Tenant is in default.
21.2 LANDLORD REMEDIES FOR TENANT DEFAULT. If any default
occurs hereunder, Landlord may, at any time thereafter and without waiving any
other rights hereunder, do one or more of the following:
21.2.1 Landlord's Reentry. At its option, Landlord may enter
the Premises or any part thereof, with process of law, and expel, remove or put
out Tenant or any other persons who may be thereon, together with all personal
property found therein; and Landlord may terminate this Lease, or it may from
time to time, without terminating this Lease and as agent of Tenant, relate the
Premises or any part thereof for such term or upon such other terms and
conditions as Landlord in its sole discretion may deem advisable, with the right
to repair, renovate, remodel, redecorate, alter and change the Premises, with
Tenant remaining liable for any deficiency computed as hereinafter set forth. In
the case of any default reentry and /or disposition by summary proceedings or
otherwise, all Rent shall become due thereupon and be paid up to the time of
such reentry or dispossession together with such expenses as Landlord may incur
for attorneys' fees, advertising expenses, brokerage fees and/ or putting the
Premises in good order or preparing the same for re-rental, together with
interest thereon as provided in Section 21.5 hereof, accruing from the date of
any such expenditure by Landlord. No such reentry or taking possession of the
Premises shall be construed as an election on Landlord's part to terminate this
Lease unless a written notice of such intention is given to Tenant.
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21.2.2 Reletting of Premises. At the option of Landlord, any
rents received by Landlord from any reletting as described in Section 21.2.1
shall be applied first to the payment of any indebtedness from Tenant to
Landlord other than Rent; second, to the payment of any costs and expenses of
such reletting and including, but not limited to, attorneys' fees, advertising
fees and brokerage fees, and to the payment of any repairs, renovations,
remodeling, redecoration, alterations and changes in the Premises; third, to the
payment of Rent to be paid by Tenant under this Lease, Tenant shall pay any
deficiency to Landlord monthly on the dates specified herein and any payment
made or suits brought to collect the amount of the deficiency for any months
shall not prejudice in any way the right of Landlord to collect the deficiency
for any subsequent month. The failure or refusal of Landlord to be liable for
failure to relet, or in the event of reletting, for failure to collect the rent
thereof, but Landlord shall attempt to mitigate its damages to the extent
required by law. In no event shall Tenant be entitled to receive any excess of
net rents collected over sums payable by Tenant to Landlord hereunder.
21.2.3 Termination. Notwithstanding any reletting termination
as described in Section 21.2.1, Landlord may at any time elect to terminate this
Lease for such previous breach and default. Should Landlord at any time
terminate this Lease by reason of any default, in addition to any other remedies
it may have, Landlord may recover from Tenant the present value of the entire
amount of Rent reserved by this Lease for the balance of the Lease Term, as it
may have been extended, over the then fair market rental value of the Premises
for the same period, plus all expenses, including court costs and attorneys'
fees, incurred by Landlord in the collection of the same.
21.3 CUMULATIVE REMEDIES. All rights and remedies of Landlord
herein enumerated shall be cumulative, and none shall exclude and other right or
remedy allowed by law.
21.4 RIGHT TO PERFORM. If Tenant shall fail to pay any sum of
money, required to be paid by Tenant to a person or entity other than Landlord
or shall fail to perform any other act to be performed by Tenant hereunder, and
such failure shall continue for five (5) days after notice thereof by Landlord,
Landlord may, but shall not be obligated so to do, and without waiving or
releasing Tenant from any obligations of Tenant, make any such payment or
perform any such other act on Tenant's part to be made or performed as provided
in this Lease. Notwithstanding any other provision hereof, Landlord may
undertake repairs in an emergency or to prevent further damage to the Building
or the Premises without delivery of notice and expiration of the cure period.
Tenant shall promptly on demand reimburse Landlord for any such payment or the
cost of performing any such act, and shall pay Landlord interest thereon at the
rate provided in Section 21.5. Landlord shall have (in addition to any other
right or remedy of Landlord), the same rights and remedies in the event of the
nonpayment of sums due under this Section 21.4 as in the case of default by
Tenant in the payment of Rent.
21.5 LATE PAYMENTS. All Rent not paid within five (5) business
days of the due date hereunder shall bear interest from the date due at the rate
of eighteen percent (18%) per annum or the maximum permitted by law, whichever
is less. In addition to any interest that may be charged hereunder, if Tenant
has been late in any payment more than once in any twelve (12) month period,
then Landlord, at its option, may collect from Tenant a service charge for the
collection of any subsequent payment during that twelve (12) month period that
is not made within five (5) business days of the due date in the amount equal to
four percent (4%) of the amount due.
21.6 WAIVER OF REDEMPTION RIGHTS. Tenant, for itself and on
behalf of any and all persons claiming through or under it, including creditors
of all kinds, does hereby surrender all right and privilege, which they or any
of them may have under or by reason of any present or future law, to redeem the
Premises or have a continuance of this Lease for the term hereof, as it may have
been extended, after having been dispossessed or ejected therefrom by process of
law or under the terms of this Lease or after the termination of this Lease as
herein provided.
22. SUBORDINATION TO MORTGAGE. This Lease is and shall be subordinate
to any mortgage or deed of trust placed at any time on the Building or the
Property by Landlord and to any and all advances to be made thereunder and to
interest thereon and all modifications, renewals and replacements or extensions
thereof ("Landlord's Mortgage"), and Tenant shall attorn to the holder of any
Landlord's Mortgage or any person or persons purchasing or otherwise acquiring
the Building, the Property or the Premises at any sale or other proceeding under
any Landlord's Mortgage; provided, however, that so long as Tenant is not in
default hereunder, Tenant's possession of the Premises shall not be disturbed
and all other rights of Tenant under this Lease shall be recognized; provided,
further, that Tenant's attornment shall be deemed to occur automatically without
further agreement of Tenant. If the holder or prospective holder of any
Landlord's Mortgage wishes to have this Lease as a prior lien to the Landlord's
Mortgage, it shall be so deemed upon the holder thereof so notifying Tenant.
Tenant shall properly execute and deliver within ten (10) days after written
notice any documents Landlord or the holder of any Landlord's Mortgage may
require to carry out the provisions of this Section. If, in connection with
obtaining financing for the Property or the Building, any holder of a Landlord's
Mortgage shall request modifications in this Lease as a condition to such
financing, Tenant shall not withhold, delay or defer its consent thereto,
provide that such modifications in this Lease as a condition do not materially
increase the obligations of Tenant hereunder or materially adversely affect the
leasehold interest hereby created.
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23. HOLDOVER. If Tenant shall, with the written consent of Landlord,
hold over beyond the expiration of the Lease Term, or if Landlord shall so
notify Tenant at any time upon or after the expiration of the Lease Term, such
tenancy shall be deemed a month-to-month tenancy that may be terminated as
provided by applicable state law. During such tenancy Tenant shall be bound by
all the terms, covenants and conditions as herein specified as far as
applicable, except rental, which shall be Two Hundred Percent (200%) of the Rent
due prior to the expiration of the Lease Term.
24. AGENT. Landlord has appointed N/A ("Agent") as its agent in all
matters concerning this Lease, and the Tenant, until notified by Landlord in
writing to the contrary, shall pay all Rent and give any notices hereunder to
Agent at Landlord's Address set forth on the signature page of this Lease. As
long as such agency shall exist, each and every term and provision of this Lease
that it is in any way beneficial to Landlord, including every stipulation
imposing or limiting liability, shall inure to the benefit of Agent and its
agents in the same manner as fully and with the same effect as Landlord. Tenant
may rely without further inquiry upon the authority of N/A.
25. NOTICES. All notices under this Lease shall be in writing and
delivered in person or sent by registered or certified mail, return receipt
requested, postage prepaid, to Landlord and to Tenant at the addresses set for
the on the signature page of this Lease (except that, after the Lease commences,
any such notice may be so mailed or delivered by hand to Tenant at the
Premises), and to the holder of any Landlord's Mortgage at such place as such
holder shall specify to Tenant in writing; or to such other addresses as may
from time to time be designated by any such party in writing. Notices mailed as
aforesaid shall be deemed given at the earlier of three (3) day s after the date
of such mailing or upon the date of receipt.
26. COSTS AND ATTORNEYS' FEES. If Landlord employs attorneys in
connection with the enforcement of this Lease, then Tenant shall only be
required to reimburse the Landlord to the extent that the Tenant has been at
fault. If Tenant or Landlord shall bring any action arising out of this Lease,
the losing party shall reimburse the prevailing party for all reasonable
attorney's fees (including court costs and disbursements) incurred in such suit,
at trial and on appeal, and such attorneys' fees shall be deemed to have accrued
on the commencement of such action.
27. ESTOPPEL CERTIFICATES. Tenant, shall, from time to time, upon
written request of Landlord, execute, acknowledge and deliver to Landlord or its
designee an Estoppel Certificate in the form shown in Exhibit E stating: the
date this Lease was executed and the date it expires; the Commencement Date and
the date Tenant accepted the Premises; the amount of Basic Rent and any then
applicable Additional Rent and any other sums payable under the Lease and date
to which such rent and/or other sums have been paid; and certifying to the best
of its knowledge: that this Lease is in full force and effect and has not been
assigned, ratified, supplemented or amended in any way (or specifying the date
and terms of any agreement as to this tenancy); that all conditions under this
Lease to be performed by the Landlord have been satisfied (or specifying any
such unsatisfied conditions and the extent to which such conditions are
unsatisfied); that all required contributions by Landlord to Tenant on account
of the Tenant Improvements have been received (or specifying the nature and
amount of any such contributions that have not been received); that no Tenant
has been paid more than one month in advance (or specifying the amount and
payment dates of any Tenant that has been so paid); the amount of the Security
Deposit held by Landlord (if any); and any other information or items requested
by Landlord. It is intended that any such statement delivered pursuant to this
Section 27 may be relied upon by Landlord and any prospective purchaser of or
prospective holder of any mortgage upon Landlord's interest in the Building
and/or the Property. If Tenant shall fail to provide such estoppel certificate
within ten (10) days of receipt by Tenant of a written request by Landlord as
herein provide, 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 any prospective purchaser or
mortgagee and to have certified that this Lease is in full force and effect,
that there are no uncured defaults in Landlord's performance, that the Security
Deposit is as stated in the Lease, and that not more than one month's Rent has
been paid in advance.
28. LIMITATION OF LIABILITY. Notwithstanding any other Lease provision,
all covenants, undertakings and agreements herein made on the part of Landlord
are made and intended not as personal covenants, undertakings and agreements for
the purpose of binding Landlord personally or the assets of Landlord except
Landlord's interest in the Building and the Property, but are made and intended
for the purpose of binding only the Landlord's interest in the Building and the
Property, as the same may from time to time be encumbered. No personal liability
or personal responsibility is assumed by , nor shall at any time be asserted or
enforceable against Landlord's or its partners, shareholders, directories and
officers of their respective heirs, legal representatives, successors or assigns
on account of this Lease or on account of any covenant, undertaking or agreement
of Landlord contained in this Lease.
29. TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer or
transfers of Landlord's interest in the Premises or in the Building, other than
a transfer for security purposes only, the transferor shall automatically be
relieved of any and all obligations and liabilities on the part of Landlord
accruing from and after the date of such transfer, but for the security deposit
paid hereunder. Tenant agrees to attorn to the transferee, such attornment shall
be deemed to occur automatically without further agreement of Tenant.
11
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30. NONWAIVER. Waiver by Landlord of any term, covenant or condition
herein contained or any breach thereof shall not be deemed to be a waiver of
such term, covenant, or condition or of any subsequent acceptance of any Rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent.
31. QUIET POSSESSION. Landlord warrants that so long as Tenant is not
in default under this Lease beyond any applicable cure period and so long as
this Lease has not been terminated, Tenant's quiet possession of the Premises
during the Lease Term shall not be disturbed by Landlord or others claiming
through Landlord.
32. SECURITY DEPOSIT. As security for the full and faithful performance
of covenant and condition of this Lease to be performed by Tenant, Tenant has
paid to Landlord the Security Deposits specified in Section 1.5, receipt of
which is hereby acknowledged. If Tenant shall default with respect to any
covenant or condition of this Lease, including but not limited to the payment of
Rent, then Landlord may apply all or any part of the Security Deposit to the
payment of any sum in default or any sum which Landlord may in its reasonable
discretion deem necessary to spend or incur by reason of Tenant's default. In
such event, Tenant within ten (10) days of written demand therefor by Landlord
shall deposit with Landlord the amount so applied. If Tenant shall have fully
complied with all covenants and conditions of this Lease, but not otherwise, the
amount of the Security Deposit then held by Landlord shall be repaid to Tenant
(or at Landlord's option, to the last assignee of Tenant's interest hereunder)
within thirty (30) days after the expiration or sooner termination of this
Lease. In the event of Tenant's default, Landlord's rights to retain the
Security Deposit shall be deemed to be in addition to any and all other rights
and remedies at law or in equity available to Landlord for Tenant's default
under this Lease. Landlord shall not be required to keep any Security Deposit
separate from its general funds and Tenant shall not be entitled to any interest
thereon.
33. GENERAL.
33.1 HEADINGS. Titles or captions to Sections of this Lease
are not a part of this Lease and shall not have not effect upon the construction
or interpretation of any part hereof.
33.2 SUCCESSORS AND ASSIGNS. All of the covenants, agreements,
terms and conditions contained in this Lease shall inure to and be binding upon
Landlord and Tenant and their respective heirs, executors, administrators,
successors and permitted assigns.
33.3 NO BROKERS. 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 from Landlord in respect of the negotiation, execution
or delivery of this Lease and Tenant shall indemnify and hold Landlord harmless
from and against any loss, cost, liability or expense incurred by Landlord as a
result of any claim asserted by any such broker, finder or other person based on
any arrangements or agreements made or alleged to have been made by or on behalf
of Tenant. The provisions of this Section 33.3 shall not apply to brokers with
whom Landlord has an express written brokerage agreement.
33.4 ENTIRE AGREEMENT. This Lease contains all covenants and
agreements between Landlord and Tenant relating in any manner to the leasing,
use and occupancy of the Premises and Tenant's use of the Building and the
Property and other matters set forth in this Lease. No prior agreements or
understandings pertaining to the same shall be valid or of any force or effect
and the covenants and agreements of this Lease shall not be altered, modified or
added to except in writing signed by Landlord and Tenant.
33.5 SEVERABILITY. Any provision of this Lease that shall
prove to be invalid, void or illegal shall in no way affect, impair or
invalidate any other provision hereof and the remaining provisions hereof shall
remain in full force and effect.
33.6 FORCE MAJEURE. Time periods for Landlord's performance
under any provisions of this Lease shall be extended for periods of time during
which Landlord's performance is prevented due to circumstances beyond Landlord's
control, including without limitation, strikes, embargoes, shortages of labor or
materials governmental regulations, acts of God, war or other strife.
33.7 CHANGES TO BUILDING. Landlord may at its option make any
repairs, alterations, additions or improvements that Landlord may deem necessary
or advisable for the preservation, safety or improvement of the Building, so
long as Tenant has reasonable access to the Premises. Landlord shall have the
right from time to time without thereby creating an actual or constructive
eviction or incurring any liability to Tenant, to renovate, repair, replace,
and/or change the arrangement or location of any of the following: sidewalks,
terraces, landscaping, loading and/or delivery areas, parking areas, lobbies,
entrances, passageways, doors and doorways, corridors, stairs, toilets and other
common areas of the Building, mechanical, cooling, heating, ventilation,
security, electrical, lighting, plumbing and other systems servicing the
Building, and other similar common service portions of the Building Complex.
Landlord shall incur no liability to Tenant, nor shall Tenant be entitled to any
abatement of Rent on account of any noise, vibration, or other disturbance to
Tenant's business in the Premises (provided that Tenant is not denied access to
the Premises) that shall arise out of the performance by Landlord of any
aforesaid improvements or renovations at or to the Building Complex. Landlord
shall use reasonable efforts (which shall not include any obligation to employ
labor at overtime rates) to avoid disruption of Tenant's business during any
such renovations. In no event shall Landlord permanently diminish any service,
change the arrangement or location of the elevators serving the Premises, make
any change that diminishes the area of the Premises, or make any change that
alters the character of the Building from a first-class building. Landlord may
change the name of the Building at any time.
12
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33.8 BUILDING DIRECTORY. Landlord shall maintain in the
Building or on the Property a directory that shall include the name of the
Tenant.
33.9 GOVERNING LAW. This Lease shall be governed by and
construed in accordance with the laws of the State of Washington.
33.10 AUTHORITY. If Tenant is a corporation, the individual
executing this Lease on behalf of Tenant represents and warrants that he/she is
duly authorized to execute and deliver this Lease on behalf of the Tenant in
accordance with a duly adopted resolution of the board of directors of Tenant
and in accordance with Tenant's bylaws, and that this Lease is binding upon
Tenant in accordance with its terms. At Landlord's request, Tenant shall, within
thirty (30) days after execution of this Lease, deliver to Landlord a certified
copy of a resolution of the board of directors of Tenant authorizing or
ratifying the execution of this Lease or provide other evidence of Tenant's
authority reasonably satisfactory to Landlord. If Tenant is a partnership, the
individual executing this Lease on behalf of Tenant represents and warrants that
he/she is duly authorized to execute and deliver this Lease on behalf of the
Tenant in accordance with Tenant's partnership agreement, and that this Lease is
binding upon Tenant in accordance with its terms. At Landlord's request, Tenant
shall, within thirty (30) days after execution of this Lease, deliver to
Landlord an executed copy of Tenant's partnership agreement or provide other
evidence of Tenant's authority reasonably satisfactory to Landlord.
33.11 RELOCATION. If the Premises contain less than Five
Thousand (5,000) square feet of net rentable area, Landlord shall have the
right, at its option, upon thirty (30) days written notice to the Tenant, to
relocate Tenant and to substitute for the Premises other space in the Building
containing at least as much net rentable area as the original Premises. Such
substitute Premises shall be improved with decorations and improvements of
comparable quantity and quality to the Tenant Improvements, at Landlord expense.
Landlord shall reimburse Tenant for the expenses reasonably incurred by Tenant
in connection with such substitution of Premises, including but not limited to
costs of moving, door lettering, telephone relocation and costs reasonably
related to interuption of business.
33.12 LANDLORD'S SECURITY INTEREST. Tenant hereby grants to
Landlord a first lien and security interest (which shall be in addition to and
not in lieu of any statutory Landlord's lien or security interest) in all
Property of Tenant (as defined in Section 7) to secure all sums due from and all
obligations to be performed by Tenant hereunder, which lien and security
interest may be enforced by Landlord in any manner provided by law, including,
without limitation, under and in accordance with the Washington Uniform
Commercial Code. Tenant agrees to provide Landlord with an itemized listing and
copies of all receipts for Property of Tenant within ten (10) days of purchase
and/or installation. In furtherance of the foregoing, Tenant shall execute any
instrument requested by Landlord to evidence or perfect the security interest
granted hereby.
Tenant shall not encumber, mortgage, hypothecate, or finance any Property of
Tenant or this Lease, the leasehold interest, the Premises, or any other
property rights therein, without Landlord's prior written consent; nor shall
Tenant execute any document involved in the financing of this Lease, the
leasehold estate or any Property of Tenant without Landlord's prior written
approval.
33.13 TENANT REPRESENTATION. Tenant acknowledges that Tenant
has been represented (or has had the opportunity to be represented) in the
signing of this Lease by independent legal counsel, selected of Tenant's own
free will, and that Tenant has had the opportunity to discuss this lease with
counsel. Tenant further acknowledges that Tenant has read and understands the
meaning and ramifications of this lease, and, as evidence of this fact, signs
his initials.
TENANT'S INITIALS: D.H.
33.14 TIME OF ESSENCE. Time is of the essence of this Lease.
Tenant execute any document involved in the financing of this Lease, the
leasehold estate or any Property of Tenant without Landlord's prior written
approval.
33.15 EXECUTION IN COUNTERPARTS. This Lease may be executed in
two or more counterparts, each of which shall constitute an original and all of
which shall be one and the same agreement.
33.16 JOINT AND SEVERAL LIABILITY. If more than one person
executes this Lease as Tenant, then (I) each of them is jointly and severally
liable for the keeping, observing and performing of all of the terms, covenants,
conditions, provisions and agreements of this Lease to be kept, observed and
performed by Tenant, and (ii) the term "Tenant" as used in this Lease shall mean
and include each of them jointly and severally and any act of or notice from, or
notice or refund to, or signature of, any one or more of them, with respect to
the tenancy of this Lease, including without limitation any renewal, extension,
expiration, termination or modification of this Lease, shall be binding upon
each and all of the persons executing this Lease as Tenant with the same force
and effect as if each and all of them had so acted or so given or received such
notice or refund or so signed.
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33.17 BINDING ON LANDLORD. Submission of this Lease for
examination, even though executed by Tenant, shall not bind Landlord in any
manner, and no lease or other obligation on the part of Landlord shall arise
until this Lease is executed and delivered by Landlord to Tenant.
33.18 NO RECORDING. Neither this Lease nor any memorandum
hereof shall be recorded in the real property records of the county wherein the
Property is located.
33.19 COMPUTATION OF TIME. The word "day" means "calendar day"
herein and the computation of time shall include all Saturdays, Sundays and
holidays for purposes of determining time periods specified herein.
34. OPTION TO RENEW. INTENTIONALLY DELETED.
IN WITNESS WHEREOF, the Landlord and the Tenant have signed their name
and affixed their seals the day and year first above written.
TENANT: LANDLORD:
Xxxxx Online, Inc. Xxxx Family Partnership, L.P.
by Xxxx Corp. its General Partner
By \s\ Xxxx Hamburg
--------------------- By \s\ Xxxxxxx X. Xxxx
--------------------------
Xxxxxxx X. Xxxx
Its: Director, Its: President
West Coast Operations
--------------------------
Address: Address:
Attention: Xxxx Hamburg
-------------------------
Xxxxx Online, Inc. Xxxx Management N.W., Inc.
-------------------------
00000 XX 00xx Xxxxxx 0000 000xx Xxx XX
-------------------------
Xxxxxxxx, XX 00000 Xxxxxxx, XX 00000
-------------------------
Telephone: (000) 000-0000 Telephone: (000) 000-0000
-------------------------
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
-------------------------
cc:
Attention: Xxx Xxx
-------------------------
XXXXX Online, Inc.
-------------------------
00 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
-------------------------
Xxxxxxx, XX 00000
-------------------------
Exhibit A Legal Description
---------
Exhibit B Floor Plan
---------
Exhibit C Tenant Improvements
---------
Exhibit D Additional Provisions
---------
Exhibit E Estoppel Certificate
---------
Exhibit F Building Rules and Regulations
---------
Exhibit G Parking Rules and Regulations
---------
14
18
LANDLORD
STATE OF WASHINGTON )
COUNTY OF KING )
I certify that I know or have satisfactory evidence that the person appearing
before me and making this acknowledgment is the person whose true signature
appears on this document.
On this 15th day of March, 2000, before me personally appeared XXXXXXX X. XXXX
to me known to be the PRESIDENT of XXXX MANAGEMENT N.W., INC., the corporation
that executed the within and foregoing instrument, and acknowledged that 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.
WITNESS my hand and seal hereto affixed the day and year first above written.
-----------------------------
XXXXXX X. XXXXXXX /s/ Xxxxxx X. Xxxxxxx
STATE OF WASHINGTON ----------------------------------
NOTARY -.- PUBLIC NOTARY PUBLIC in and for the State
MY COMMISSION EXPIRES 2-10-03 of Washington, residing in Bellevue.
----------------------------- My commission expires 2-10-03.
TENANT
STATE OF WASHINGTON )
) ss:
COUNTY OF KING )
I certify that I know or have satisfactory evidence that the person appearing
before me and making this acknowledgment is the person whose true signature
appears on this document.
On this 10th day of March, 2000, before me personally appeared
Xxxx Hamburg
-------------------------------------------------------------------------------
known to be the Director, West Coast Operations
----------------------------------------------------------------
of Xxxxx Online, Inc. the corporation that executed the within and
--------------------------,
foregoing instrument, and acknowledged that he/she signed the same as his/her
free and voluntary act and deed to the uses and purposes therein mention.
WITNESS my hand and seal hereto affixed the day and year first above written.
----------------------------- /s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX -----------------------------------
STATE OF WASHINGTON NOTARY PUBLIC in and for the State
NOTARY -.- PUBLIC of Washington, residing in Bellevue.
MY COMMISSION EXPIRES 2-10-03 My commission expires 2-10-03.
-----------------------------
TENANT
STATE OF )
---------------
)ss:
COUNTY OF )
--------------
I certify that i know or have satisfactory evidence that the person appearing
before me and making this acknowledgment is the person whose true signature
appears on this document.
On this day of , 2000, before me personally appeared
------ --------
-------------------------------------------------------------------------------
known to be the
----------------------------------------------------------------
of , the corporation that executed the
-----------------------------------------
within and foregoing instrument, and acknowledged that he/she signed the same as
his/her free and voluntary act and deed to the uses and purposes therein
mentioned.
WITNESS my hand and seal hereto affixed the day and year first above written.
------------------------------------
NOTARY PUBLIC in and for the State
of
--------------------------------,
residing in
-----------------------.
My commission expires
-------------.
19
EXHIBIT A
Legal Description
Lot 21 and an undivided one-twelfth(1\12th) interest in Tract A of Linbrook
Yarrow Bay, as per plat recorded in Volume 118 of Plats, Pages 94 through 96,
Records of King County, as revised by City of Xxxxxxxx Lot Line Adjustment No.
84-76, filed in Volume 42 of Surveys, Pages 23 and 23A, and recorded under King
County Recording No. 8410099003, Records of King County;
TOGETHER with a perpetual, non-exclusive easement and right of access, ingress,
egress and utilities as established by Declaration of Covenants, Conditions and
Restrictions and Reservation of Easements for Linbrook Yarrow Bay, Recorded
under King County Recording No. 8410290408 and as delineated over and across the
North 24 feet of Xxx 00 xx Xxxxxxxx Xxxxxx Xxx, as per plat recorded in Volume
118 of Plats, Pages 94 through 96, Records of King County, and as revised by
City of Xxxxxxxx Lot Line Adjustment No. 84-76, filed in Volume 42 of Surveys,
Pages 23 and 23A, and recorded under King County Recording No. 8410099003,
Records of King County;
Situated in the City of Xxxxxxxx, County of King, State of Washington.
20
EXHIBIT B
[LINBROOK OFFICE PARK Floor Plan]
(Buildings 21 & 22)
21
EXHIBIT C
Tenant Improvements for Office Lease Agreement
Between Xxxx Family Partnership, L.P. ("Landlord")
and Xxxxx Online, Inc. ("Tenant")
I. COMMENCEMENT AND EXPIRATION DATES; POSSESSION.
A.COMMENCEMENT DATE. The Commencement Date shall be as provided in
Section 1.3 of the Lease, unless notice is given pursuant to this Exhibit C as
follows:
(1) If Landlord delivers to Tenant a notice at least fifteen
(15) days prior to the date upon which the Premises, together with the common
facilities for access and service thereto, shall be substantially completed,
then the Commencement Date shall be the date specified in such notice (which
shall not be prior to January 20, 2000, without Tenant's consent) or any earlier
date upon which Tenant occupies the Premises; and
(2) As used herein, "substantially completed" shall mean (i)
any Tenant Improvements to be installed by Landlord in the Premises pursuant to
this Exhibit C are completed, subject to punch list items, (ii) Tenant has
access to the Premises, and (iii) the cooling, heating and ventilation systems
servicing the Premises are operable. The determination when the Premises are
substantially completed shall be reasonably and exclusively made by Landlord's
architect. Landlord shall use its reasonable efforts to cause the Commencement
Date to occur by January 20, 2000.
B.TENANT OBLIGATIONS. If the Tenant Improvements are not competed on
the Commencement Date due to the failure of Tenant to fulfill any obligations
pursuant to the terms of this Lease or any Exhibit hereto, including without
limitation Tenant's failure to substantially comply with any dates set forth in
this Exhibit C, the Lease shall be deemed to have commenced upon the date it
would have commenced but for Tenant's failure, which date shall be determined by
Landlord in its sole reasonable discretion and confirmed to Tenant in writing.
C.TENANT TERMINATION RIGHTS. If the Commencement Date does not occur
within three (3) months following the date specified in Section 1.3, then Tenant
may terminate this Lease by written notice, except such three (3)-month period
at Landlord's sole option may be extended to a date not later than six
(6)-months from the Commencement Date specified in Section 1.3 for delays due to
causes beyond the reasonable control of Landlord. If the Commencement Date has
not occurred within such six (6)-month period at Tenant's option, this Lease
shall be deemed null and void and all rights and obligations of the parties
shall terminate. Termination under this Exhibit C shall be Tenant's sole remedy
for any failure or delay in delivering possession of the Premises or completion
of the Tenant Improvements and Tenant shall have no other rights or claims
hereunder at law or in equity.
The premises will be delivered in as-is condition, except for the following,
which will occur at Landlord's sole expense: (i) paint finished portion of
premises with building-standard paint; (ii) Shampoo carpets.
22
EXHIBIT D
Additional Provisions for Office Lease Agreement
Between Xxxx Family Partnership, L.P. ("Landlord")
and Xxxxx Online, Inc. ("Tenant")
1. PARKING: Notwithstanding the terms and conditions of this Lease
Agreement, during the term of this Lease and all option periods, the
Tenant shall have the right to use a share of the parking based upon
the ratio of four (4) stalls per 1,000 square feet of rentable space,
(which equates to 15 stalls during the initial term) on an unassigned
basis.
2. SIGNAGE: The Landlord shall permit the Tenant to install, at Landlord's
expense, a building standard sign in a mutually acceptable location
near the entry to the Tenant's premises.
23
EXHIBIT E
ESTOPPEL CERTIFICATE
1 Re: Lease dated ____________ ("Lease") by and between Xxxxxxx X. Xxxx,
President ("Landlord") and __________________________________
("Tenant")
Gentlemen:
Reference is made to the above-described Lease in which the undersigned
is the Tenant. We understand that you are accepting an assignment of Landlord's
rights under the Lease as _____________________, and we hereby, as a material
inducement for you to consummate the transaction, represent that:
1. The Lease is for a term, commencing on _________ , ______ 19 and
ending ______ (__) years thereafter, and the Lease covers the real property
("Premises") depicted in EXHIBIT A, attached hereto and incorporated herein by
reference thereto, the Premises being part of certain real property ("Property")
located in the City of ________, County of ________, State of ____________, and
more particularly described in EXHIBIT B, attached hereto and incorporated
herein by reference thereto. A true and correct copy of the Lease is attached
hereto as EXHIBIT C and incorporated herein by reference thereto.
2. There are no modifications, amendments, supplements, arrangements,
side letters or understandings, oral or written, of any sort, modifying,
amending, altering, supplementing or changing the terms of the Lease, except for
those attached hereto as EXHIBIT D.
3. The Lease is in full force and effect, and the Lease has been duly
executed and delivered by, and is a binding obligation of, the Tenant as set
forth therein.
4. The undersigned acknowledges (a) that rent on the Lease had been
paid up to and including _______________, 19__, (b) that monthly rent during
the ____________ ( ) years of the term of the Lease is $________ per month, and
(c) that rent has not been paid for any period after ____________________, 19
and shall not be paid for a period in excess of one (1) month in advance.
5. A security deposit in the amount of $___________ has been made by
Tenant and is now held by Landlord.
6. All conditions under the Lease to be performed by Landlord have been
satisfied (or those conditions not yet satisfied, and the extent to which such
conditions are satisfied, shall be explained in detail attached to this
Certificate).
7. The improvements on the Premises are free from defects in design,
materials and workmanship; and the improvements meet all governmental
requirements, including, but not limited to, zoning and environmental
requirements.
8. The Lease is not in default, and Landlord has performed the
obligations required to be performed by Landlord under the terms thereof through
the date hereof, and there are no existing claims, defenses, or offsets that the
Tenant had against the enforcement of this Lease by the Landlord.
9. The Lease shall be subordinate to a Deed of Trust on the Premises
and an assignment of Landlord's interest in the Lease given by Landlord
to _______________; and in the event of a merger of Landlord and Tenant in any
manner, the interest of Tenant and Landlord shall not merge.
10. Tenant agrees not to modify, amend, terminate or otherwise change
the Lease without ten (10) days' prior written notice to you.
11. In the event of a default by Landlord under any of the terms or
provisions of the Lease, Tenant shall give you adequate notice and sufficient
time to cure such default.
12. This lease represents the entire agreement between the parties as
to Tenant's occupancy of the Premises.
Dated: ________________, 19___.
Very truly yours,
"Tenant"
By:__________________________
Its:_________________________
24
EXHIBIT F
LINBROOK OFFICE PARK
BUILDING RULES AND REGULATIONS
1. SIGN. No sign, placard, picture, advertisement, name or notice shall
be inscribed, displayed, printed or affixed on or to any part of the outside or
inside of the Building, the Premises or the surrounding area without the written
consent of the Landlord being first obtained. If such consent is given by
Landlord, Landlord may regulate the manner of display of the sign, placard,
picture, advertisement, name or notice. Landlord shall have the right to remove
any sign, placard, picture, advertisement, name or notice which has not been
approved by Landlord or is being displayed in a non-approved manner without
notice to and at the expense of the Tenant. Tenant shall not place anything or
allow anything to be placed near the glass of any window, door partition or wall
which may appear unsightly from outside of the Premises; provided, however that
Landlord is to furnish and install a building standard window blind at all
exterior windows. Tenant shall not, without prior written consent of Landlord,
install a sunscreen on any window.
2 DIRECTORIES. The directories of the Building will be provided
exclusively for the display of the name and location of tenants and Landlord
reserves the right to exclude any other names therefrom.
3. ACCESS. The sidewalks, halls, passages, exits, entrances, and
stairways shall not be obstructed by any of the tenants or used by them for any
purpose other than for ingress to and egress from their respective Premises. The
halls, passages, entrances, exits, stairways, and roof are not for the use of
the general public and the Landlord shall in all cases retain the right to
control thereof and prevent access thereto by all persons whose presence in the
judgment of the Landlord shall be prejudicial to the safety, character,
reputation and interests of the Building or its tenants; provided, however, that
nothing herein contained shall be construed to prevent access by persons with
whom the Tenant normally deals in the ordinary course of Tenant's business
unless such persons are engaged in illegal activities. No Tenant and no
employees or invitees of any Tenant shall go upon the roof of the building.
4. LOCKS. Tenant shall not alter any lock or install any new additional
locks or any bolts on any door of the Premises without the written consent of
Landlord.
5. RESTROOMS AND SHOWER ROOMS. The toilet rooms, urinals, wash bowls,
shower rooms, and other apparatus shall not be used for any purpose other than
that for which they were constructed and no foreign substance of any kind
whatsoever shall be thrown therein. No towels, wash cloths, soaps, or shampoos
shall be left in or around the shower rooms. The expense of any breakage,
stoppage or damage resulting from a violation of this rule shall be borne by the
Tenant who, or whose employees, sublessees, assignees, agents, licensees, or
invitees, shall have caused it.
6. NO DEFACING PREMISES. Tenant shall not overload the floor of the
Premises, shall not xxxx on or drive nails, screw or drill into the partitions,
woodwork or plaster (except as may be incidental to the hanging of wall
decorations), and shall not in any way deface the Premises or any part thereof.
7. SAFES, HEAVY EQUIPMENT AND MOVING OF FURNITURE. No furniture,
freight or equipment of any kind shall be brought into the Building without
prior consent of Landlord and all moving of the same into or out of the Building
shall be done at such time and in such manner as Landlord shall designate.
Landlord shall have the right to prescribe the times and manner of moving all
heavy equipment in and out of the Building. Landlord will not be responsible for
loss of or damage to any such safe or property from any cause and all damage
done to the Building by moving or maintaining any such safe or other property
shall be repaired at the expense of Tenant. There shall not be used in any
Premises, or in the public halls of the Building, either by any tenant or
others, any hand trucks except those equipped with rubber tires and side guards.
8. JANITORIAL SERVICES. Tenant shall not cause any unnecessary labor by
reason of Tenant's carelessness or indifference in the preservation of good
order and cleanliness. Janitorial service shall include ordinary dusting and
cleaning by the janitor assigned to such work and shall not include cleaning of
carpets or rugs, except normal vacuuming, or moving of furniture and other
special services. Janitorial service will be furnished between 7:00 p.m. and
6:00 a.m. Occupants in the space during these hours may cause the space not to
be cleaned that day. Window cleaning shall be done only by Landlord and only
between 4:00 a.m. and 5:00 p.m.
(daylight hours).
9. NUISANCE. Tenant shall not use, keep or permit to be used or kept
any food or noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable to the
Landlord or other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having business
in the Building. No animals or birds shall be brought in or kept in or about the
Premises or the Building. No Tenant shall make or permit to be made any
disturbing noises or disturb or interfere with occupants of this or neighboring
Buildings or Premises, or with those having business with such occupants by the
use of any musical instrument, radio, phonograph, unusual noise, or in any other
way. No Tenant shall throw anything out of doors or down passageways.
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10. PERMITTED USE. The Premises shall not be used for manufacturing or
for the storage of merchandise except as such storage may be incidental to the
use of the Premises for general office purposes. No Tenant shall occupy or
permit any portion of its Premises to be occupied for the manufacture or sale of
liquor, narcotics, or tobacco in any form, or as a medical office, or as a
xxxxxx shop or manicure shop except with prior written consent of Landlord. No
tenant shall advertise for laborers giving an address at the Premises. The
Premises shall not be used for lodging or sleeping or for illegal purposes.
11. HAZARDOUS SUBSTANCES. Tenant shall not use or keep in the Premises
or the Building any kerosene, gasoline or inflammable or combustible fluid or
material or any Hazardous Substance or use any method of heating or air
conditioning other than that supplied by the Landlord.
12. COMMON AREA CONTROL. Landlord shall have the right to control and
operate the public portions of the Building, and the public facilities, and
heating and air conditioning, as well as facilities furnished for the common use
of the tenants, in such manner as it deems best for the benefit of the tenants
generally.
13. ENTRY DOORS. All entrance doors in the Premises shall be left
locked when the Premises are not in use, and all doors opening to public
corridors shall be kept closed except for normal ingress and egress from the
Premises.
14. TELEPHONES. Landlord will direct electricians as to where and how
telephone and telegraph wires are to be introduced. No boring or cutting for or
stringing of wires will be allowed without the consent of Landlord. The location
of telephones, call boxes and other office equipment affixed to the Premises
shall be subject to the approval of Landlord.
15. KEYS. All keys to the Building, Premises, and rooms shall be
obtained from Landlord's office and Tenant shall not from any other source
duplicate or obtain keys or have keys made without prior consent by Landlord.
The Tenant, upon termination of tenancy, shall deliver to the Landlord the keys
to the Building, Premises, and rooms which shall have been furnished and shall
pay the Landlord for the cost of replacing any lost key or of changing the lock
or locks opened by such lost key if Landlord deems it necessary to make such
change.
16. FLOOR COVERING. No Tenant shall lay linoleum, tile, carpet or other
similar floor coverings so that the same shall be affixed to the floor or the
Premises in any manner except as approved by the Landlords. The expenses of
repairing any damage resulting from a violation of this rule or removal of any
floor covering shall be borne by the Tenant by whom, or by whose contractors,
agents, sublessees, licenses, employees or invitees, the floor covering shall
have been laid.
17. BUILDING CLOSURE. Except during Tenant's normal business hours,
access to the Building or to the halls, corridors, or stairways in the Building,
or to the Premises may be refused unless the person seeking access is known to
any person or employee of the Building in charge and has a pass or is properly
identified. The Landlord shall in no case be liable for damages for any error
with regard to the admission to or exclusion from the Building of any person. In
case of invasion, mob, riot, public excitement, or other commotion, the Landlord
reserves the right to prevent access to the Building and property located
therein. Anything to the foregoing notwithstanding, Landlord shall have no duty
to provide security protection for the Building at any time or to monitor access
thereto.
18. PREMISES CLOSURE. Tenant shall see that the doors of the Premises
are closed and securely locked before leaving the Building and that all water
faucets, water apparatus and electricity are entirely shut off before Tenant or
Tenant's employees leave the Building. Tenant shall be responsible for any
damage to the Building or other tenants caused by failure to comply with this
rule.
19. DISORDERLY CONDUCT. Landlord reserves the right to exclude or expel
from the Building any person who, in the judgment of Landlord, is intoxicated or
under the influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
20. TENANT REQUESTS. Any requests of Tenant will be considered only
upon application at the office of the Landlord. Employees of Landlord shall not
be requested to perform any work or do anything outside of their regular duties
unless under special instructions from the Landlord.
21. VENDING MACHINES. No vending machine shall be installed, maintained
or operated upon the Premises without the written consent of the Landlord.
22. BUILDING NAME AND ADDRESS. Landlord shall have the right,
exercisable without notice and without liability to Tenant, to change the name
of the Building of which the Premises are a part.
23. FIRE REGULATIONS. Tenant agrees that it shall comply with all fire
regulations that may be issued from time to time by Landlord and Tenant also
shall provide Landlord with the names of a designated responsible employee to
represent Tenant in all matter pertaining to fire regulations.
24. TENANT ADVERTISING. Without the written consent of Landlord, Tenant
shall not use the name of the Building in connection with or in promotion or
advertising the business of Tenant except as Tenant's address.
26
25. EMERGENCY INFORMATION. Tenant must provide Landlord with names and
telephone numbers to contact in case of emergency. Tenant must fill out a tenant
emergency information sheet and return it to Landlord's office within three (3)
days of occupancy.
26. INSTALLATION OF BURGLAR AND INFORMATIONAL SERVICES. If Tenant
requires telegraphic, telephonic, burglar alarm or similar services, it shall
first obtain, and comply with, Landlord's instructions in their installation.
27. DELIVERIES. No equipment, materials, furniture, packages, supplies
merchandise or other property will be received in the Building except between
such hours as may be designated by Landlord. Tenant's initial move in and
subsequent deliveries of bulky items, such as furniture, safes and similar items
shall, unless otherwise agreed in writing by Landlord, be made during the hours
of 6:00 p.m. to 6:00 a.m. or on Saturday or Sunday. No deliveries shall be made
which impede or interfere with other tenants or the operation of the Building.
28. FLOOR LOADS. Tenant shall not place a load upon any floor of the
Premises which exceeds the load per square foot which such floor was designed to
carry and which is allowed by law. Landlord shall have the right to prescribe
the weight, size and position of all equipment, materials, furniture or other
property brought into the Building. Heavy object shall, if considered necessary
by Landlord, stand on such platforms as determined by Landlord to be necessary
to properly distribute the weight, which platforms shall be provided at Tenant's
expense. Business machines and mechanical equipment belonging to Tenant, which
cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to
Landlord or any tenants in the Building, shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The person employed to move such
equipment in or out of Building must be acceptable to the Landlord. Landlord
will not be responsible for loss of, or damage to, any such equipment or other
property from any cause, and all damage done to the Building by maintaining or
moving such equipment or other property shall be repaired at the expense of
Tenant.
29. ENERGY CONSERVATION. Tenant shall not waste electricity, water or
air-conditioning and agrees to cooperate fully with Landlord to assure the most
effective operation of the Building's heating and air-conditioning and to comply
with any governmental energy-saving rules, laws, or regulations of which Tenant
has actual notice, and shall refrain from attempting to adjust controls. Tenant
shall keep corridor doors closed, and shall close window coverings at the end of
each business day. No exterior doors shall be held or left open by Tenant, its
employees, or visitors, except for normal ingress and egress.
30. NO ANTENNAS. Tenant shall not install any radio or television
antenna, loudspeaker or other devices on the roof or exterior walls of the
Building. Tenant shall not interfere with radio or television broadcasting or
reception from or in the Building or elsewhere.
31. NO SOLICITING. Canvassing, soliciting and distribution of handbills
or any other written material, and peddling in the Building are prohibited, and
Tenant shall cooperate to prevent such activities.
32. PROHIBITED USES. The Premises shall not be used for any improper,
immoral or objectionable purpose. No cooking shall be done or permitted on the
Premises without Landlord's consent, except that use by Tenant of Underwriters
Laboratory approved equipment for brewing coffee, tea, hot chocolate and similar
beverages or use of microwave ovens for employee use shall be permitted,
provided that such equipment and use is in accordance with all applicable
federal, state, county and city laws, codes, ordinances, rules and regulations.
33. ENFORCEMENT OF RULES. Landlord may waive any one or more of these
Rules and Regulations for the benefit of Tenant or any other Tenant, but no such
waiver by Landlord shall be construed as a waiver of such Rules and Regulations
in favor of Tenant, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Building.
34. LEASE. These Rules and Regulations are in addition to, and are made
a part of the terms, covenants, agreements and conditions of Tenants Lease of
its Premises in the Building.
35. ADDITIONAL RULES. Landlord reserves the right to make such other
Rules and Regulations or amendments hereto as, in its reasonable judgment, may
from time to time be needed for safety and security, for care and cleanliness of
the Building and for the preservation of good order therein. Tenant agrees to
abide by all such Rules and Regulations hereinabove stated and any additional
rules and regulations which are adopted.
36. OBSERVANCE OF RULES. Tenant shall be responsible for the observance
of all of the foregoing rules by Tenant's employees, agents, licensees,
sublessees, assigns, and invitees.
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EXHIBIT G
LINBROOK OFFICE PARK
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking facilities
which are appurtenant to the Building.
1. Landlord hereby grants to Tenant and Tenant's customers, suppliers, employees
and invitees, a non-exclusive license to use the designated parking areas in the
Project on an unreserved, first come, first serve basis for the parking of motor
vehicles during the term of this Lease. Landlord reserves the right at any time
to grant similar non-exclusive use to other tenants, to promulgate rules and
regulations relating to the use of such parking areas, including reasonable
restrictions on parking by tenants and employees, to designate specific spaces
for the use of any tenant, to make changes in parking layout from time to time,
and to establish reasonable time limits on parking.
2. Landlord reserves the right to disperse any concentration of parking by
tenant's employees in an area that is located closer to another tenant's entry
than to their own.
3. Landlord reserves the right at a future date to charge for parking at a rate
to be set forth by Landlord.
4. Parking stickers or any other device or form of identification supplied by
Landlord and/or Parking Operator shall remain the property of the Landlord
and/or Parking Operator. Such parking identification device must be displayed as
requested and may not be mutilated in any manner. The serial number of the
parking identification device may not be obliterated. Devices are not
transferable and any device in the possession of an unauthorized holder will be
void. There will be a replacement charge payable by Tenant or Tenant's employee
for the loss of any parking identification device.
5. Landlord reserves the right to refuse parking identification devices to any
tenant or person and/or his agents or representatives who willfully refuse to
comply with these Rules and Regulations and all unposted City, State or Federal
ordinances, laws or agreements. Tenant shall acquaint all persons to whom Tenant
assigns parking spaces of the Rules and Regulations.
6. Loss or theft of parking identification devices from automobiles must be
reported immediately, and a lost or stolen report must be filed by the customer
at that time. Landlord and/or Parking Operator has the right to exclude any
vehicle from the parking facilities that does not have an identification device.
7. Any parking identification devices reported lost or stolen found on any
unauthorized vehicle will be confiscated and the illegal holder will be subject
to prosecution.
8. Every xxxxxx is required to park and lock his own vehicle. All responsibility
for damage to vehicle is assumed by the xxxxxx, Landlord and/or Parking Operator
shall not be responsible for any theft or vandalism to Tenant's vehicle from the
parking facilities that does not have an identification device.
9. Tenant shall not park or permit the parking of any vehicle under its control
in any parking areas designated by Landlord as areas for handicapped, van pool,
and car pool parking pr parking by visitors to the Building. Tenant shall not
leave vehicles in the parking areas other than automobiles, motorcycles, motor
driven bicycles or 4-wheeled trucks.
10. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
11. Vehicles must be parked entirely within the painted stall lines of a single
parking stall.
12. All directional signs and arrows must be observed.
13. The speed limit within all parking areas shall be 5 miles per hour.
Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross hatched areas;
(f) in such other areas, as may be designated by Landlord
or Landlord's Parking Operator; and
(g) on the premises for more than twenty-four (24)
consecutive hours.
28
14. Landlord or its agents shall have the right to cause to be removed any
vehicle of Tenant, its employees, invitees, licensees, or agents, that may be
parked in unauthorized areas, and Tenant agrees to save and hold harmless
Landlord, its agents and employees from any and all claims, losses, damages and
demands asserted or arising in respect to or in connection with the removal of
any such vehicle and for all expenses incurred by Landlord in connection with
such removal. Tenant will from time to time, upon request of Landlord, supply
Landlord with a list of License plate numbers for vehicles owned or operated by
its employees and agent.
15. Landlord reserves the right to modify and/or adopt such other reasonable and
non-discriminatory rules and regulations for the parking facilities as it deems
necessary for the operation of the parking facilities. Landlord may refuse to
permit any person who violates these rules to park in the parking facilities,
and any violation of the rules shall subject the car to removal at the owners
expense.
16. Lot managers or attendants are not authorized to make or allow any
exceptions to these Rules and Regulations.
